6
The efficacy of habeas corpus is an imperative of the duty of prevention as one of the
components of the general obligation to guarantee the protected rights (Article 1(1) of the
Convention),0 including in order to avoid that situations are created in violation of the rights
enshrined in the American Convention, such as that of forced disappearance of persons,
which moreover lead to the impunity of the persons responsible for the facts constitutive of
such crime.
16.
The ensuring of the efficacy of habeas corpus is complementary, in the present case,
in my view, with the other measure of non-pecuniary reparation, consisting in the legislative
tipification of the crime of forced disappearance of persons, in conformity with the provisions
of the Inter-American Convention on Forced Disappearance of Persons of 1994, even as a
means of guaranteeing some of the rights protected by the American Convention on Human
Rights (such as the right to life, Article 4, and the right to personal freedom, Article 7). The
above-mentioned tipification, mentioned by the Court in paragraph 56 of the present
Judgment, in my understanding is, more than "desirable", necessary. It is foreseen in the
aforementioned Convention of 1994 (Article IV), among other legislative obligations (Article
III), which adds that the persons allegedly responsible for the facts constitutive of the crime
of forced disappearance of persons "may be tried only in the competent jurisdictions of
ordinary law in each State, to the exclusion of all other special jurisdictions, particular
military jurisdiction" (Article IX).0
17.
At the public hearing of 07 September 1996 before the Court, the Colombian
Government itself referred clearly to the matter at issue in two moments (alluding even to
national initiatives for the revision of Law 15 of 1992 on habeas corpus),0 indicating that
"there [was] no divergence" between itself and the Inter-American Commission in respect of
the subject of habeas corpus.0 Moreover, in its brief of 26 July 1996, the Government
informed the Court inter alia that it was "progressing with the initiatives tending to place
once again before Congress" the text of the Inter-American Convention on Forced
Disappearance of Persons, as well as to incorporate that category of crime into its domestic
criminal legislation.0 I thus see no reason for the Court not to consider the request of the
Commission0 for non-pecuniary measures of reparation.0 In the present Judgment on
12
One may recall that the the Court itself, on another occasion, linked such general obligation of Article 1(1)
to the right to an effective remedy before the competent judges or tribunals, enshrined in Article 25(1), which
"incorporates the principle, recognized in the international law of human rights, of the effectiveness of the
procedural instruments or means designed to guarantee such rights". Judicial Guarantees in States of Emergency
(Arts. 27(2), 25 and 8 American Convention on Human Rights), Advisory Opinion OC-9/87, of 06 October 1987,
Series A, n. 9, paragraphs 22-24.
13
Article IX adds that the facts "constituting forced disappearance may not be deemed to have been
committed in the course of military duties". And Article VII, in its turn, stipulates that "[c]riminal prosecution for
the forced disappearance of persons and the penalty judicially imposed on its perpetrator shall not be subject to
statutes of limitations".
14
Mentioned in paragraph 54 of the present Judgment.
15
Verbatim Records of the Public Hearing Held by the Inter-American Court of Human Rights on 07
September 1996 - Caballero Delgado and Santana Case, Phase of Reparations, pp. 31 and 15.
16
Page 4 of the aforementioned brief.
17
And of the petitioners in the case on behalf of the victims.