42
effectiveness that such investigations should respect.128 In the instant case, the State, after
receiving the complaint filed in 1990, should have conducted a genuine and impartial
investigation in order to rule on the merits within a reasonable time.
158. Based on the foregoing, the Court finds that the domestic procedures and
proceedings have not constituted effective remedies to guarantee access to justice, the
investigation and eventual punishment of those responsible, and the integral reparation of
the consequences of the violations. As a result of these findings, the Court concludes that
the State violated the rights established in Articles 8(1) and 25(1) of the American
Convention, in relation to Articles 1(1) thereof, to the detriment of Graciela De León and
Patria and Franklin Portugal.
159. Furthermore, the Court finds that the lack of investigation into the alleged torture to
which Mr. Portugal was subjected is subsumed under the violation declared in the preceding
paragraph in relation to the failure to investigate the forced disappearance of Heliodoro
Portugal, so that it does not find it necessary to undertake further analysis in this regard in
light of Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture.
IX
ARTICLE 5 (RIGHT TO HUMANE TREATMENT)129 OF THE AMERICAN CONVENTION IN RELATION TO
ARTICLE 1(1) (OBLIGATION TO RESPECT RIGHTS) THEREOF
160. The Commission alleged in its application that the mental and moral integrity of the
permanent companion of Heliodoro Portugal, Graciela De León, and of his children, Patria
and Franklin, “was affected as a direct consequence of the disappearance of Heliodoro
Portugal, the lack of knowledge regarding his ultimate fate, and the failure to investigate
the facts.”
161. The representatives alleged, additionally, that the children of Patria Portugal,
namely, Román and Patria Kriss Mollah Portugal should also be considered victims of a
violation of their mental and moral integrity.
162. The State argued that “the alleged effect on the personal integrity of Heliodoro
Portugal’s next of kin was incidental to the alleged effect on the personal integrity of
Heliodoro Portugal himself” and that, since the Court does not have competence regarding
the effect on his personal integrity, it does not have competence regarding any incidental
consequences.
163. The Court has reiterated on many occasions that the relatives of victims of certain
human rights violations can also be considered victims.130 In this regard, in other cases the
Court has found that the right to mental and moral integrity of the next of kin of a victim
may be violated due to the additional suffering caused as a result of the particular
128
Cf. Case of García Prieto et al., supra note 10, para. 115.
129
In this regard, this Article establishes that:
1.
Every person has the right to have his physical, mental, and moral integrity respected.
2. No one shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment. All
persons deprived of their liberty shall be treated with regard for the inherent dignity of the human person.
130
Cf. Blake v. Guatemala. Merits. Judgment of January 24, 1998. Series C No. 36, paras. 114 to 116; Case
of Cantoral Huamaní and García Santa Cruz, supra note 18, para. 112, and Bueno Alves v. Argentina. Merits,
reparations, and costs. Judgment of May 11, 2007. Series C No. 164, para. 102.
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