IV.
LEGAL ANALYSIS
A. Rights to juridical personality,118 to life,119 to humane treatment,120 and personal liberty,121 in
connection with Article 1.1122 of the American Convention
45.
In its consistent legal precedent on cases of forced disappearance of persons, the Inter-American
human rights protection system has held that it constitutes an illegal act that gives rise to a multiple and
continuing violation of several rights protected by the American Convention and places the victim in a state of
complete defenselessness, bringing other related crimes in its wake. The State’s international responsibility is
increased when the disappearance forms part of a systematic pattern or practice applied or tolerated by the
State. In brief, it is a crime against humanity involving a gross rejection of the essential principles on which the
Inter-American system is based. 123 Therefore, States are obligated to not practice or tolerate the forced
disappearance of persons in any circumstance. Likewise, they must take reasonable steps to prevent this crime
from being committed, carry out a serious investigation into what happened in order to identify those
responsible and impose the appropriate punishment on them, as well as ensure the victim’s adequate
reparation.124
46.
According to its consistent case law, the Commission considers forced disappearance to be a complex
violation of human rights that continues in time as long as the whereabouts of the victim or his remains is
unknown. A disappearance, as such, ceases only when the victim appears or his remains are found.125 Likewise,
the Court has consistently and repeatedly held that forced disappearance of persons is characterized by its
multiplicity of offenses, ongoing and continuous nature, with the following coexisting and constituent elements:
a) deprivation of liberty; b) direct intervention of State agents, at least indirectly by their concurrence, and c)
refusal to acknowledge the detention and reveal the fate or the whereabouts of the person involved.126 The
Article 3 of the American Convention establishes the following: “Article 3. Right to Juridical Personality. Every person has the right to
recognition as a person before the law.
119 Article 4.1 of the American Convention establishes the following: “Article 4. Right to Life 1. Every person has the right to have his life
respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his
life.”
120 Article 5.1 of the American Convention establishes the following: “Article 5. Right to Humane Treatment 1. Every person has the right
to have his physical, mental, and moral integrity respected.”
121 Article 7 of the American Convention establishes, in the relevant portion, the following: “Article 7. Right to Personal Liberty 1. Every
person has the right to personal liberty and security.”
122 Article 1.1 of the American Convention establishes the following: “Article 1. Obligation to Respect Rights 1. The States Parties to this
Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the
free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political
or other opinion, national or social origin, economic status, birth, or any other social condition.”
123 IACHR. Application before the Inter-American Court of Human Rights. Case No. 11.324. Narciso González et al. Dominican Republic. May
2, 2010, par. 103; IACHR. Application before the Inter-American Court. Case 12.517. Gregoria Herminia Contreras et al. El Salvador. June
28, 2010, par. 131; IA Court of HR, Case of Goiburú et al v. Paraguay. Merits, Reparations and Costs. Judgment of September 22, 2006. Series
C No. 153 (“Goiburú et al Judgment”), par. 82. See also: IACHR. Report No. 101/01. Case 10.247 et al. Extrajudicial executions and forced
disappearances of persons. Peru. October 10, 2001, par. 178; IA Court of HR, Case of Gómez Palomino v. Peru. Merits, Reparations and Costs.
Judgment of November 22, 2005. Series C No. 136 (“Gómez Palomino Judgment”), par. 92; Case of the Serrano Curz Sisters v. El Salvador.
Preliminary Objections. Judgment of November 23, 2004. Series C No. 118, pars. 100 - 106.
124 IA Court of HR. Velásquez Rodríguez Judgment, par. 174. See also: Case of Anzualdo Castro v. Peru. Preliminary Objection, Merits,
Reparations and Costs. Judgment of September 22, 2009. Series C No. 202 (“Anzualdo Castro Judgment”), par. 62; and Case of Radilla
Pacheco v. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 23, 2009. Series C No. 209 (“Radilla
Pacheco Judgment”), par. 142.
125 IACHR. Application before the Inter-American Court. Case 12.529. Rainer Ibsen Cárdenas and José Luis Ibsen Peña. Bolivia. May 12,
2009, par. 206.
126 See, among other ones: IA Court of HR. Gómez Palomino Judgment, par. 97; Case of Heliodoro Portugal v. Panama. Preliminary Objections,
Merits, Reparations and Costs. Judgment of August 12, 2008. Series C No. 186 (“Heliodoro Portugal Judgment”), par. 110; Case of Ticona
Estrada et al v. Bolivia. Merits, Reparations and Costs. Judgment of November 27, 2008. Series C No. 191 (“Ticona Estrada et al Judgment”),
par. 55; Radilla Pacheco Judgment, par. 140; Case of Chitay Nech et al v. Guatemala. Preliminary Objections, Merits, Reparations and Costs.
Judgment of May 25, 2010. Series C No. 212, par. 85; Case of Ibsen Cárdenas and Ibsen Peña v. Bolivia. Merits, Reparations and Costs.
Judgment of September 1, 2010. Series C No. 217(“Ibsen Cárdenas and Ibsen Peña Judgment”), par. 60; Case of Gomes Lund et al ("Guerrilha
do Araguaia") v. Brazil. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 24, 2010. Series C No. 219, par. 104;
Case of Torres Millacura et al v. Argentina. Merits, Reparations and Costs. Judgment of August 26, 2011. Series C No. 229, par. 95; Case of
Contreras et al v. El Salvador. Merits, Reparations and Costs. Judgment of August 31, 2011. Series C No. 232, par. 82; Case of Gudiel Álvarez
[continues …]
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