comprehensively, 326 taking into account the corpus juris of both inter-American and
international protection.
230. Given the nature of this case, the main dispute revolves around the different
hypotheses regarding what happened to the presumed victims whose whereabouts are
unknown to date or, in the case of Ana Rosa Castiblanco Torres, whose whereabouts were
unknown for 16 years. On the one hand, there is the hypothesis that the disappeared
persons died during the events of November 6 and 7, 1985, and the whereabouts of their
remains are unknown while, on the other hand, it is indicated that these individuals left the
Palace alive in the custody of State agents and were victims of forced disappearance (supra
paras. 222 to 224 and infra 289). Owing to the absence of direct evidence in relation to
either of the two hypotheses, the Court recalls that it is legitimate to use circumstantial
evidence, indications and presumptions as grounds for a judgment, provided that
conclusions consistent with the facts can be inferred from them. 327 In this regard, the Court
has indicated that, in principle, the plaintiff has the burden of proving the facts on which his
arguments are based. However, it has emphasized that, contrary to domestic criminal law,
in proceedings on human rights violations, the State’s defense cannot rest on the plaintiff’s
inability to provide evidence when it is the State that controls the means to clarify facts that
occurred in its territory. 328 In addition, indicative or presumptive evidence is especially
important in the case of allegations of forced disappearance, because this type of violation
is characterized by the attempt to eliminate any element that allows the detention,
whereabouts and fate of the victims to be proved. 329
231. In addition, regarding the way in which the evidence in domestic proceedings is
assessed, as indicated in other cases concerning Colombia, the Court reiterates that it is not
a criminal court and that, as a general rule, it is not incumbent on it to decide on the
authenticity of the evidence produced in a domestic investigation when this has been
considered valid by the competent judicial jurisdiction, and if it has not been able directly to
verify or to confirm violations to the guarantees of due process in obtaining, investigating,
authenticating or assessing such evidence. 330
232. The Court notes that, according to the State, when analyzing whether forced
disappearances occurred in this case, “the deprivation of liberty cannot be presumed or
supposed in the absence of news about the whereabouts of an individual in order to
construct the presumed perpetration of the internationally wrongful act of forced
disappearance” (supra para. 224). In this regard, it is important to stress that the way in
which the deprivation of liberty was implemented is irrelevant when characterizing an
326
Cf. Case of Goiburú et al. v. Paraguay. Merits, reparations and costs. Judgment of September 22, 2006. Series C
No. 153, para. 85, and Case of Osorio Rivera and family members v. Peru. Preliminary objections, merits, reparations
and costs. Judgment of November 26, 2013. Series C No. 274, para. 116.
327
Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 130, and
Case of J. v. Peru. Preliminary objections, merits, reparations and costs. Judgment of November 27, 2013. Series C
No. 275, para. 306.
328
Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 135, and
Case of J. v. Peru. Preliminary objections, merits, reparations and costs. Judgment of November 27, 2013. Series C
No. 275, para. 306.
329
Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 131, and
Case of Osorio Rivera and family members v. Peru. Preliminary objections, merits, reparations and costs. Judgment of
November 26, 2013. Series C No. 274, para. 150.
330
Cf. Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations. Judgment
of November 30, 2012. Series C No. 259, para. 201, and Case of the Afrodescendant Communities displaced from the
Cacarica River Basin (Operation Genesis) v. Colombia. Preliminary objections, merits, reparations and costs. Judgment
of November 20, 2013. Series C No. 270, para. 77.
77
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos