8
the victim's death was known to the authorities or agents, his relatives were not informed
despite their unstinting efforts to discover his whereabouts, and because attempts had been
made to dispose of the remains. The Commission also claims that there were further
violations of the American Convention connected with these events.
35. In the first cases of disappearance of persons submitted to it this Court maintained
that:
[t]he forced disappearance of human beings is a multiple and continuous violation of many rights
under the Convention that the States Parties are obligated to respect and guarantee... The practice
of disappearance, in addition to directly violating many provisions of the Convention, such as those
noted above, constitutes a radical breach of the treaty in that it shows a crass abandonment of the
values which emanate from the concept of human dignity and of the most basic principles of the
inter-American system and the Convention. The existence of this practice, moreover, evinces a
disregard of the duty to organize the State is such a manner a to guarantee the rights recognized in
the Convention (Velásquez Rodríguez Case, Judgment of July 29, 1988. Series C No. 4, paras. 155
and 158, and Godínez Cruz Case, Judgment of January 20, 1989. Series C No. 5, paras. 163 and
166).
36. There is no treaty in force containing a legal definition of forced disappearance of
persons which is applicable to the States Parties to the Convention. However, note should
be taken of the texts of two instruments, the United Nations Declaration on the Protection of
All Persons from Enforced Disappearance, of December 18, 1992, and the Inter-American
Convention on Forced Disappearance of Persons, of June 9, 1994. Although the latter has
not yet entered into force for Guatemala, these instruments embody several principles of
international law on the subject and they may be invoked pursuant to Article 29(d) of the
American Convention. In the terms of that article, no provision of this Convention shall be
interpreted as “excluding or limiting the effects that the American Declaration of the Rights
and Duties of Man and other international acts of the same nature may have.”
37.
Article 17(1) of the United Nations Declaration states that:
Acts constituting enforced disappearance shall be considered a continuing offense as long as its
perpetrators continue to conceal the fate and the whereabouts of persons who have disappeared and
as long as these facts remain unclarified.
Article III of the aforementioned Inter-American Convention provides that:
The States Parties undertake to adopt, in accordance with their constitutional procedures, the
legislative measures that may be needed to define the forced disappearance of persons as an offense
and to impose an appropriate punishment commensurate with its extreme gravity. This offense shall
be deemed continuous or permanent as long as the fate or whereabouts of the victim has not been
determined.
38. In addition, in Guatemala's domestic legislation, Article 201 TER of the Penal Code amending decree No. 33-96 of the Congress of the Republic approved on May 22, 1996stipulates in the pertinent part that the crime of forced disappearance “shall be deemed to
be continuing until such time as the victim is freed.”
39. The foregoing means that, in accordance with the aforementioned principles of
international law which are also embodied in Guatemalan legislation, forced disappearance
implies the violation of various human rights recognized in international human rights
treaties, including the American Convention, and that the effects of such infringements even though some may have been completed, as in the instant case- may be prolonged
continuously or permanently until such time as the victim's fate or whereabouts are
established.