conclusions of its Merits Report and in the claims it submitted to the Court, it did not
present the factual and legal arguments on which this violation was founded. Meanwhile,
the representatives indicated that this violation was based on the fact that the State had
“not drafted legislation to create legal instruments that facilitate the search for persons who
have been forcibly disappeared.” In this regard, the Court recalls that, in cases of forced
disappearance, the investigation must include the measures required to determine the fate
of the victims and to locate their whereabouts, which is an obligation of means and not of
results (supra para. 134). Regarding this case, the Court notes the testimony of witness
Manuel Giovanni Vasquez that exhumations have been performed in different cemeteries,
but none of the remains found are those of Edgar Fernando García. It also observes that,
according to information provided by the State, the bill to create the National Commission
for the Search for Victims of Forced Disappeared and other Forms of Disappearance has
been before Congress since 2006. Based on this information, the Court considers that it
does not have sufficient evidence to allow it to find that the ineffectiveness of the search for
the whereabouts or the remains of Edgar Fernando García constitutes failure to comply with
the State’s general obligation established in Article 2 of the Convention. The Court also
emphasizes that the lack of effectiveness of the investigations, which includes the
ineffectiveness to determine the whereabouts of the victim, has already been analyzed by
this Court in relation to the obligation to investigate examined supra.
157. Regarding the alleged violation of the right of access to information, the Court
observes that, in this case, the Commission and the representatives based this claim mainly
on the denial of information in response to the remedies and complaints filed by the family
members. In this regard, the Court considers that these allegations have already been
examined essentially in the section of this chapter corresponding to the analysis of the
investigations and their effectiveness. The Commission also referred to the supposed refusal
of the Ministry of Defense to provide information. In this regard, the Court underlines the
testimony of witness Manuel Giovanni Vasquez that, “[i]n this case, the Ministry of Defense
was not asked for information” in the context of the investigation by the Public Prosecution
Service. 237 The Court considers that a violation of the right of access to information requires
the denial of a specific request addressed by the presumed victims to the State authorities
to obtain the said information. The possible absence of collaboration between State bodies
would represent an obstacle to the elucidation of the facts, which would affect due diligence
and the effectiveness of the investigations, but does not constitute an autonomous violation
of the right of access to information of the disappeared victim’s family. Therefore, the Court
finds that it is not necessary to analyze the alleged violation of the right of access to
information, presumably contained in Articles 13 and 23 of the Convention, to the detriment
of the members of Edgar Fernando García’s family.
VIII-3
ALLEGED VIOLATIONS TO THE DETRIMENT OF NINETH VARENCA MONTENGRO
COTTOM, ALEJANDRA GARCÍA MONTENEGRO AND MARÍA EMILIA GARCÍA
158. The Court has stated on many occasions that the next of kin of the victims of human
rights violations may, in turn, be victims. 238 In this regard, in this chapter, the Court will
address the violations that have been alleged to the detriment of the members of Edgar
237
796).
Cf. Affidavit prepared by Manuel Giovanni Vásquez Vicente on March 11, 2012 (merits file, tome II, folio
238
Cf. Case of Vargas Areco v. Paraguay. Merits, reparations and costs. Judgment of September 26, 2006.
Series C No. 155, para.83, and Case of the Massacres of El Mozote and nearby places v. El Salvador, supra, para.
197.
56