105.
The IACHR has stated that the right to justice contained in Article XVIII of the American Declaration is
similar in its scope to the right to judicial protection contained in Article 25 of the American Convention and
includes the right of any person to appear before a court when any of her or his rights have been violated, to
obtain an investigation conducted by a competent, impartial and independent, as well as the right to obtain
reparation for harm done.128
106.
Incases relating to extrajudicial executions, such as forced disappearances, the IACD and the InterAmerican Court have held that the State has an obligation to initiate, ex officio and without delay, a serious,
impartial, and effective investigation by all lawful means available in order to determine the truth and to ensure
the pursuit, capture, trial, and eventual punishment, where applicable, of all the authors of the facts129, especially
when State agents are or may be involved.130 This duty to investigate is one of means, not results, that must be
assumed by the State as its own legal duty and be undertaken in a serious manner and not as a mere formality
preordained to be ineffective, or simply as a step taken by private interests that depends upon the initiative of
the victim or his family or upon their offer of proof.131 The State’s obligation to investigate [...] must be fulfilled
diligently in order to avoid impunity and the recurrence of this type of event.132
107.
At the same time, specifically with respect to forced disappearances, both the Court and the Commission
have held that the response of the State is inevitably linked to the protection of the life and well-being (bodily
integrity) of the person reported missing. Whether the disappearance may have occurred at the hands of private
citizens or at the hands of state agents is immaterial where duty of the State to render an immediate and
exhaustive response is concerned. The Commission reiterates that “when there are reasonable grounds to
suspect that a person has been disappeared, it is essential for prosecutorial and judicial authorities to take
prompt and immediate action by ordering timely and necessary measures to determine the whereabouts of the
victim or the place where he or she might be deprived of liberty.”133
108.
Regarding judicial executions, the Commission underscores certain standards of the Minnesota
Protocol, which sets out a number of basic procedures for performing due diligence: identification of the victim;
recovery and preservation of evidentiary material related to the death to aid in any potential prosecution of
those responsible; identification of possible witnesses and collection of statements from them concerning the
death; determination of the cause, manner, location and time of death, as well as any pattern or practice that
may have brought about the death; distinction between natural death, accidental death, suicide and homicide;
identification and apprehension of the person(s) involved in the death; and bringing of the suspected
perpetrator(s) before a competent court established by law.134
IACHR Report No. 71/15. Case 12,879. Merits. Vladimir Herzog et al. Brazil. October 28, 2015, par. 192; IACHR, Report No. 40/04, Case
No. 12.053, Mayan Indigenous Community (Belize), Annual Report of the IACHR, 2004, par. 174; IACHR, Report No. 54/01, Case 12.051,
Maria Da Penha Fernandes (Brazil), April 16, 2001, par. 37.
129 I/A Court HR. Velásquez Rodríguez Case. v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 1, par. 177; Case of Veliz Franco et
al. v. Guatemala. Preliminary Objections, Merits, Reparations, and Costs. Judgment of May 19, 2014. Series C No. 277, par. 183.
130 I/A Court HR. Case of Myrna Mack Chang v. Guatemala. Merits, Reparations and Costs. Judgment of November 25, 2003. Series C No. 101,
par. 156; and Case of the Afro-descendant 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, par. 371.
131 I/A Court HR. Velásquez Rodríguez Case v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 1, par. 177; Case of Veliz Franco et
al. v. Guatemala. Preliminary Objections. Merits, Reparations and Costs. Judgment of May 19, 2014. Series C No. 277, par.183.
132 I/A Court HR. Case of the Ituango Massacres v. Colombia. Judgment of July 1, 2006, Series C No. 148, par. 319; Case of Veliz Franco et al.
v. Guatemala. Preliminary Objections, Merits, Reparations, and Costs. Judgment of May 19, 2014. Series C No. 277, par. 183; and Case of
Landaeta Mejías Brothers et al v. Venezuela. Preliminary objections, Merits, Reparations, and Costs Judgment of August 27, 2014. Series C
No. 281, par. 216.
133 IACHR. Report No. 111/09. Case 11,324. Merits. Narciso González Medina. Dominican Republic, November 10, 2009. Par. 225; I/A Court
H.R. Case of Anzualdo Castro v. Peru. Preliminary Objection, Merits, Reparations and Costs. Judgment of September 22, 2009. Series C No.
202, par. 134; Case of Radilla Pacheco v. Mexico. Preliminary Objections, Merits, Reparations, and Costs. Judgment of November 23, 2009.
Series C No. 209, par. 221; Case of Ibsen Cárdenas and Ibsen Peña v. Bolivia. Merits, Reparations and Costs. Judgment of September 1, 2010.
Series C No. 217, par. 167. See, also, Matter of Natera Balboa regarding Venezuela (Provisional Measures). Order of the Inter-American Court
of Human Rights of February 1, 2010, preambular par. 13, and Matter of Guerrero Larez. Provisional measures regarding Venezuela. Order
of the Court, Thursday, August 29, 2013, Whereas clause 16.
134 I/A Court HR. Case of Gutiérrez Hernández et al. v. Venezuela. Merits, Reparations and Costs. Judgment of August 22, 2017. Series C No.
338. Par. 161.
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