24
by an absence of information or a refusal to acknowledge that deprivation of freedom
or to give information on the whereabouts of that person, thereby impeding his or her
recourse to the applicable legal remedies and procedural guarantees.
63.
Article 17(1) of the United Nations Declaration on the Protection of All
Persons from Forced Disappearance, of December 18, 1992, establishes that:
[a]cts constituting enforced disappearance shall be considered a continuing offence as
long as its perpetrators continue to conceal the fate and the whereabouts of persons
who have disappeared and these facts remain unclarified.
64.
Article 201 TER of the Guatemalan Penal Code, as amended by Decree 3396 of the Congress of the Republic, approved on May 22, 1996, stipulates that:
[t]he crime of forced disappearance is committed by anyone who, by order or with
authorization or support of State authorities, in any way deprives a person or persons
of their liberty, for political reasons, concealing their whereabouts, refusing to reveal
their fate or recognize their detention, as well as any public official or employee,
whether or not they are members of the State security forces, who orders,
authorizes, supports or acquiesces in such actions.
65.
In other cases, the Court has stated that forced the disappearance of
persons constitutes a multiple and continuing violation of a number of rights
protected by the Convention. Forced disappearance also evinces a disregard of
the duty to organize the apparatus of the State in such a manner as to guarantee
the rights recognized in the Convention. (Velásquez Rodríguez Case, supra 49,
paras. 155 and 158, and Godínez Cruz Case, supra 49 and paras. 163 and 166).
66.
Forced or involuntary disappearance is one of the most serious and cruel
human rights violations, in that it not only produces arbitrary deprivation of
freedom but places the physical integrity, security and the very life of the
detainee in danger. It also leaves the detainee utterly defenseless, bringing
related crimes in its wake. Hence, it is important for the State to take all
measures as may be necessary to avoid such acts, to investigate them and to
sanction those responsible, as well as to inform the next of kin of the disappeared
person's whereabouts and to make reparations where appropriate.
67.
The Court considers Mr. Nicholas Blake's disappearance as marking the
beginning of a continuing situation, and will decide about the actions and effects
subsequent to the date on which Guatemala accepted the competence of the
Court. At this point, the Court will first examine the question of imputability, in
the context of the aforementioned continuing situation, and then will consider the
various points concerning the merits raised in the application.
IX
IMPUTABILITY
68.
In the judgment on preliminary objections, the Court decided that, as far
as the merits of the case were concerned, it would determine whether the civil
patrols should or should not be considered to be agents of the State and,
consequently, to determine whether the acts indicated by the Commission could
or could not be imputed to the State, or whether, on the contrary, they were
common criminal acts.
69.
During this proceeding, the Commission argued that the civil patrols acted
as agents of the State and that they were involved in forced disappearances.