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(n) The determination of the position of guarantor is not the only probative
element for individual attribution to the State agent. The agent must also
have created a legally-unacceptable danger, and this must have translated
into a violation of the protection obligation with regard to the people of Pueblo
Bello. It has not been proved that the soldiers present in the zone created a
legally-unacceptable danger because they violated the obligations resulting
from their activity, or because they were clearly aware of the situation of
actual risk to the obligations. Furthermore, there is no evidence that would
allow such awareness to be inferred. To the contrary, there are elements
within the proceedings that point to the Army’s total unawareness of the
specific situation of danger and the possibility of an attack on the village;
(o) There is not just one access route to the ranch to which the people abducted
from Pueblo Bello were taken. To the contrary, it has been proved that there
are other access routes from Pueblo Bello to “Las Tangas” by which the
military presence and control could be avoided, and
(p) The inter-American system expressly recognizes the possibility that some
rights may be restricted when this is required for the exercise of the rights of
others, for reasons of collective security, or for the general welfare (Articles
32, 13, 15 and 22 of the Convention). However, it is one matter to limit the
exercise of rights, which is admissible as an abstract concept under normal
conditions, and another very different matter to eliminate a right, which
owing to its nature is unacceptable.
104. Regarding Article 19 of the American Convention, the State alleged that there
is no evidence of responsibility for the violation of the rights to life, liberty and
humane treatment in the facts of Pueblo Bello; thus, the State did not fail to comply
with the obligation to respect the rights of the child.
Findings of the Court
105.
Article 1(1) of the Convention establishes:
The States Parties to this Convention undertake to respect the rights and freedoms
recognized herein and to ensure to all persons subject to their jurisdiction the free and
full exercise of those rights and freedoms, without any discrimination for reasons of
race, color, sex, language, religion, political or other opinion, national or social origin,
economic status, birth, or any other social condition.
106.
Article 4(1) of the Convention stipulates that:
Every person has the right to have his life respected. This right shall be protected by
law and, in general, from the moment of conception. No one shall be arbitrarily
deprived of his life.
107.
Paragraphs 1 and 2 of Article 5 of the Convention establish:
1.
Every person has the right to have his physical, mental, and moral integrity respected.
2.
No one shall be subjected to torture or to cruel, inhuman, or degrading punishment
or treatment. All persons deprived of their liberty shall be treated with respect for
the inherent dignity of the human person.
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