applied or tolerated by the state, because the imperative need to prevent the repetition of said events depends,
to a large extent, on preventing them from going unpunished and on meeting the expectations of both the
victims and society as a whole of gaining access to knowledge of the truth of what happened. The elimination
of impunity by all legal means available is a basic element for the elimination of extrajudicial killings, torture,
and other grave human rights violations.161
151.
According to inter-American case law, it turns out that, when there is a report on the disappearance of
a person, there is an integral linkage between the state’s response and the protection of the life and integrity of
the person who is reported missing. The Commission reiterates that, when there are reasonable reasons for
suspecting that a person has been subjected to disappearance, it is indispensable for prosecution and judicial
authorities to act quickly and immediately by ordering timely and necessary measures aimed at ascertaining
the whereabouts of the victim or the place where he or she might be found deprived of liberty.162
152.
In the words of the Inter-American Court, so that an investigation of an alleged forced disappearance
can be conducted effectively and with due diligence:163
the authorities in charge of the investigation must use all necessary means to take those measures and
make those inquiries that are essential and opportune to clarify the fate of the victims. On numerous
occasions, this Court has ruled on the obligation of States to conduct a genuine search, using the
appropriate administrative or judicial mechanism, during which every effort is made, systematically and
rigorously, with the adequate and appropriate human, technical and scientific resources, to establish the
whereabouts of the persons disappeared. The return of the body of a disappeared person is extremely
important for their next of kin, because it allows them to bury him or her in keeping with their beliefs,
and also to close the mourning process that they have been experiencing throughout these years. In
addition, the remains are evidence of what happened and, together with the place where they are found,
can provide valuable information on the perpetrators of the violations or the institution to which they
belong.
153.
Likewise, in the case of forced disappearances, the codification of the crime of forced disappearance
must have priority in the investigations that need to be launched or continued at the domestic level. Because it
involves a crime that is prolonged in time, when the codification of the crime of forced disappearance of persons
comes into force, the new law applies, although this does not means it can be applied retroactively.164
154.
Furthermore, pursuant to Article 1.1 of the American Convention, the obligation of guaranteeing the
rights recognized in Articles 5.1 and 5.2 of the American Convention entails the state’s duty to investigate
possible acts of torture or other cruel, inhuman, or degrading treatment. This obligation to investigate is
reinforced by the provisions of Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish
Torture which requires the state to “take effective measures to prevent and punish torture in the sphere of its
jurisdiction,” as well as to “prevent and punish […] other cruel, inhuman, or degrading treatment.”165
155.
According to inter-American case law, it is clear that, by virtue of Articles 8 and 25 of the Convention,
when the authorities are apprised of a possible case of forced disappearance or torture, they have the
reinforced duty of promoting and conducting the investigation, which includes the following relevant matters
for the instant case: (i) to start ex officio the investigation as long as there is a complaint or well-founded reason
for suspecting that said crimes have been committed; (ii) to order and bring forward the relevant evidence in
line with the duty of due diligence; (iii) to guarantee independence and impartiality in the investigation; and
(iv) to remove the obstacles that jeopardize the adequate development of the investigation, among others.
I/A Court H.R. Case of the Massacres of El Mozote and nearby places v. El Salvador. Merits, Reparations, and Costs. Judgment of October
25, 2012. Series C No. 252, para. 244.
162 I/A Court H.R. Case of Ibsen Cárdenas e Ibsen Peña v. Bolivia. Merits, Reparations, and Costs. Judgment of September 1, 2010. Series C
No. 217, para. 167.
163 I/A Court H.R. Case of Rodríguez Vera et al. (the Disappeared from the Palace of Justice) v. Colombia. Preliminary Objections, Merits,
Reparations, and Costs. Judgment of November 14, 2014. Series C No. 287, para. 480.
164 I/A Court H.R. Case of Gelman v. Uruguay. Merits and Reparations. Judgment of February 24, 2011. Series C No. 221, para. 236.
165 IACHR. Report on the Merits No. 74/15. Mariana Selvas Gomez et al. Mexico. October 28, 2015, para. 378; I/A Court H.R. Case of J. v. Peru.
Preliminary Objection, Merits, Reparations, and Costs. Judgment of November 27, 2013. Series C No. 275, para. 341.
161