110
Considerations of the Court
167.
Paragraphs 1 and 4 of Article 22 of the American Convention establish that:
1. Every person lawfully in the territory of a State Party has the right to move about in
it, and to reside in it subject to the provisions of the law.
[…]
4. The exercise of the rights recognized in paragraph 1 may also be restricted by law in
designated zones for reasons of public interest. […]
168. This Court has pointed out that freedom of movement is an indispensable
condition for free development of each person.229 The Court has concurred with the
conclusion of the United Nations Human Rights Committee, in its General Comment
No. 27, where it establishes that freedom of movement and of residence consist,
inter alia, of the following: a) the right of those lawfully in the territory of a State to
move about freely in that State and to choose their place of residence; and b) the
right of each person to enter their country and remain in it. Enjoyment of this right
does not depend on any specific objective or motive of the person who wishes to
move about or to remain in a certain place.230
169. In the instant case, the representatives argued that the State breached
Article 22(1) of the Convention to the detriment of the next of kin of the victims they
represent, due to the domestic displacement they were forced to suffer. Based on
the facts acknowledged by the State, the Court does in fact find that the freedom of
movement of the families of the victims was curtailed while the paramilitary
remained in Mapiripán during the facts of July 1997 (supra para. 96.35).
Furthermore, it has been proven that many of the next of kin of the victims in
Mapiripán were forced into displacement after the massacre (supra paras. 96.63 and
96.64). However, based on the circumstances of the instant case and given the
complex situation of vulnerability that affects persons who suffer the phenomenon of
forced internal displacement, the Court finds it necessary to analyze the dynamics of
said phenomenon in the specific context of Colombia’s domestic armed conflict,
before establishing whether in the instant case the State breached the Convention to
the detriment of the next of kin due to this situation.
170. In the recent Case of the Moiwana Community v. Suriname, this Court
deemed that, notwithstanding the existence of legislation on the matter by the
respondent State, the freedom of movement and residence of the members of the
Moiwana community who were displaced was limited by a de facto restriction
stemming from the fear they felt for their security and from the fact that the State
had not conducted a criminal investigation, which kept them away from their
ancestral territory. The Court pointed out that the State had not established the
necessary conditions or provided the means required to enable the members of the
community to return voluntarily, safely and with dignity, to their traditional lands.
Furthermore, the State had not conducted an effective criminal investigation to end
229
See Case of the Moiwana Community, supra note 4, para. 110, and Case of Ricardo Canese,
supra note 185, para. 115.
230
See Case of the Moiwana Community, supra note 4, para. 110, and Case of Ricardo Canese,
supra note 185, para. 115. United Nations Human Rights Committee, General Comment no. 27 of
November 2, 1999, paras. 1, 4, 5 and 19.
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