62
134. It has also been proved that, despite the various domestic remedies used in
order to clarify the facts, these were not effective to prosecute and, if applicable,
punish those responsible (supra 121 m). Guatemala even accepted its international
responsibility, stating that “it has still not been possible for the competent bodies to
identify the persons or person criminally responsible for the unlawful acts that are
the subject of this application.”
135. Now that it has been proved that the detention and disappearance of Efraín
Bámaca Velásquez occurred and that they may be attributed to the State, the Court
will examine these facts in the light of the American Convention.
XI
VIOLATION OF ARTICLE 7
(RIGHT TO PERSONAL LIBERTY)
136. With regard to the violation of Article 7 of the Convention, the Commission
alleged that:
a)
the detention of Efraín Bámaca Velásquez by agents of the
Guatemalan armed forces and his captivity in a clandestine center, without
presenting him before the judicial authorities, violated the right established in
Article 7 of the Convention and Article 6 of the Guatemalan Constitution. This
is concluded from the statements of various witnesses who describe military
installations where Velásquez was detained;
b)
on other occasions, the Commission has reached the conclusion that
agents of the State have abducted persons and kept them prisoner in
clandestine detention centers, located in installations of the armed forces, and
this situation constitutes “a particularly serious form of arbitrary deprivation
of liberty”. These actions of State agents are beyond the law and, due to
their secret nature, may not be examined; and
c)
from the evidence in this case, it is proved that Bámaca Velásquez was
alive in the hands of the Army up until at least May 1993, or even until
August that year, without knowing the cause of his detention and in a place
that was not “legally and publicly (destined to that end)”, which proves that
he “was not detained in accordance with the laws of Guatemala, and this
implies that Article 7.2 of the Convention has been violated.”
137. The State limited its defense to the assertion that “it has still not been
possible to identify the persons or person criminally responsible for the unlawful acts
against Mr. Bámaca [Velásquez] and, thus, clarify his disappearance” and, in
consequence, it did not put forward any defense related to the violation of the right
to personal liberty embodied in the American Convention, either at the procedural
opportunity of answering the application or in its final arguments.
*
*
138.
*
Article 7 of the American Convention establishes, in this regard:
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents