be responsible for not “ordering, collecting or evaluating evidence,” which may be essential to properly
elucidate the facts.146
59.
It is also necessary to bear in mind that, when cases in which forced disappearance may have occurred,
the Court has held that the right of access to justice includes that in the investigation into the facts, an attempt
must be made to determine the fate or the whereabouts of the victim.147 Additionally, given that one of the goals
of forced disappearance is to impede the exercise of legal remedies and the pertinent procedural guarantees,
whenever a person is subjected to any form of deprivation of liberty “for the purposes of his or her forced
disappearance, if the victim itself cannot have access to available recourses, it is crucial that the next-of-kin or
other people related to the victim can have access to expeditious and effective judicial procedures and recourse
as a means of determining the whereabouts.” 148 The habeas corpus remedy constitutes, among the
indispensable judicial guarantees, the most suitable means to guarantee personal liberty and integrity, avoid
disappearances or uncertainty about detention centers, and to protect the individual from torture or other
forms of cruel, inhumane or degrading treatment and, ultimately, ensure the right to life.149 However, if the writ
of habeas corpus requires “the identification of the place of detention and the authority ordering the detention,
it would not be adequate for finding a person clandestinely held.”150 Applicability of these standards to the
instant case is not precluded by the above-reached conclusion about the lack of sufficient evidence to deem the
facts to be a forced disappearance based on available information. These standards are fully applicable, taking
into account that the hypothesis of forced disappearance was raised from the beginning with the authorities in
charge of the investigation and, therefore, both the pretrial investigation and the amparo proceeding, should
have fulfilled the aforementioned obligation.
60.
In the instant case, the IACHR finds that the steps taken in the three proceedings, that were opened in
the domestic arena, were ineffective and not aimed at actively and seriously searching for the truth about what
happened or finding the whereabouts or the remains of the disappeared person. In fact, the agents of the Public
Prosecutor’s Office in the pretrial investigation merely took repeated statements from the wife of the
disappeared person and the suspect and sent letters to the police departments instructing them to investigate
the reported facts and find the missing person. Nonetheless, no active search was undertaken thereof or any
serious analysis conducted of the information gathered with a view toward taking any further investigative
steps or following lines of investigation to effectively find the disappeared persons and those responsible for
his disappearance.
61.
In particular, even though the suspect claimed that the disappeared person had headed in the direction
of El Calvario through Santa Catarina and then later claimed that he was in the Nueva Esperanza sector,
authorities only performed searches of the vicinity of the Sabanilla river, where the suspect claimed to have
last seen him, and no other search seems to have been conducted anywhere else. Furthermore, despite the fact
that it was asserted by witnesses and information provided by different sources that Antonio González was an
EZLN sympathizer and PRD member and that it was alleged by his wife and the Centro de Derechos Humanos
Fray Bartolomé de las Casas that Juan López was a member of Paz y Justicia, none of these organizations seems
to have been investigated; nor did authorities design, pursue and fully exhaust the line of investigation tied to
the context of political strife being experienced in the area at the time of the facts of the case or follow lines of
investigation pertaining to the alleged participation of the Paz y Justicia paramilitary group in the facts of the
case.
62.
Similarly, the Public Prosecutor’s Office took almost three years to request a photograph of the
disappeared person in order to aid in the search for him. Likewise, the Commission cannot fail to note, as a
clear sign of the failure of the State to meet its obligations under Articles 8 and 25 of the Convention, and that
no serious, exhaustive and impartial investigation was conducted, what was attested on July 16, 2007 by a
IA Court of HR. Case of the “Street Children” (Villagrán Morales et al) v. Guatemala. Merits. Judgment of November 19, 1999. Series C No.
63, par. 230.
147 IA Court of HR. Radilla Pacheco Judgment, par. 143, 191; Velásquez Rodríguez Judgment, par. 181
148 IA Court of HR. Anzualdo Castro Judgment, par. 64; Radilla Pacheco Judgment, par. 141; Ibsen Cárdenas and Ibsen Peña Judgment, par.
64.
149 IA Court of HR. Anzualdo Castro Judgment, par. 72; Case of Castillo Páez v. Peru. Merits. Judgment of November 3, 1997. Series C No. 34,
par. 83.
150 IA Court of HR. Velásquez Rodríguez Judgment, par. 65.
146
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