Historical Archive of the National Police, in which Mr. García’s arrest by police agents during
a “Patrol and Cleansing Operation” was fully accredited, but neither Mr. García’s
whereabouts have been determined nor all the masterminds and perpetrators have been
identified and punished. The Court emphasizes that the investigation of this case did not
advance beyond its initial phase until 2009, 25 years after the commencement of Mr.
García’s disappearance, despite the numerous remedies and complaints filed by the family
members, the witnesses who reported having seen his arrest, the findings of the CEH, the
appearance of the Diario Militar, and the discovery of the Historical Archive of the National
Police. Consequently, the Court considers that it is not necessary to analyze the abovementioned elements, because it is obvious that the time that has passed is significantly
more than the time that could be considered reasonable for the State to investigate the
facts of this case; especially when it is taken into account that the time required to
individualize, identify and process other individuals who are possibly responsible and the
different stages of the criminal proceedings must be added to this. The lack of investigation
over such a long period constitutes a flagrant denial of justice and a violation of the victims’
right of access to justice.
5. Conclusion
154. The Court takes note of the context in which the start of the victim’s disappearance
occurred. Nevertheless, it observes that the impunity that characterized this case for 26
years (until 2010, when two of the perpetrators were sentenced) remains in part because,
despite the evidence in the case file, Mr. García’s fate or whereabouts remain unknown;
moreover, all the facts have not been clarified and all those responsible (masterminds and
perpetrators, participants and accomplices) have not been identified. The Court recalls that
owing to the systemic nature of the violations committed in this case, the State must take
all necessary measures to investigate and, as appropriate, punish those responsible, to
establish the truth of what happened, and to locate the whereabouts of the victim and
inform his next of kin. This obligation subsists until the fate or whereabouts of the
disappeared person is determined (supra paras. 129 and 134).
155. Despite the progress made after 2009, the Court considers that the State has failed
to comply with its obligation to initiate an investigation into the forced disappearance of
Edgar Fernando García, ex officio, using all the legal means available and with due
diligence, and it has not respected the guarantee of a reasonable time. In addition, the
Court considers that the remedies available have not been effective to determine the
whereabouts of the victim. Consequently, the State has failed to comply with its obligation
to ensure the rights recognized in Articles 7, 5(1), 5(2), 4(1) and 3 of the American
Convention, by an effective investigation, in relation to Article 1(1) of this instrument and
Article I(b) of the Inter-American Convention on Forced Disappearance, to the detriment of
Edgar Fernando García. The Court also concludes that, owing to the lack of an effective
investigation of the facts, the prosecution, and punishment of all those responsible, the
State has violated the rights to judicial guarantees and to judicial protection recognized in
Articles 8(1) and 25(1) of the American Convention, in relation to Article 1(1) thereof and
Article I(b) of the Inter-American Convention on Forced Disappearance, to the detriment of
Nineth Varenca Montenegro Cottom, Alejandra García Montenegro and María Emilia García.
6. Alleged violation of the obligation to adopt domestic legal provisions and
of the right of access to information
156. The Court observes that both the Commission and the representatives alleged noncompliance with Article 2 of the American Convention, in relation to the investigations.
However, the Court stresses that, although the Commission included this violation in the
55