26
according to them (material aspect) and furthermore, with strict attachment to the
procedures objectively defined in the same (formal aspect).92
91.
The Court deems it sufficiently credited that Florencio Chitay Nech was detained by
agents of the State or private individuals, whom acted with acquiescence, and that more
than 29 years have passed since his detention and the whereabouts of his remains are still
unknown.
92.
In this sense, every time there are reasonable motives to suspect that a person has
been subject to forced disappearance, an investigation should be initiated.93 This
investigation is independent from the file of a petition, since in cases of forced
disappearance, international law imposes the obligation of investigating the case ex officio,
without delay, and in a serious, impartial, and effective manner. This is a fundamental and
conditional element for the protection of certain rights affected by such situation, such as
personal liberty, humane treatment [personal integrity], and life.94 Nevertheless, in any
case, every state authority, public or private official, that has had notice of acts of the
forced disappearance of persons, shall immediately report said facts.95
93.
In consideration of the foregoing, the Tribunal concludes that Florencio Chitay Nech
was unlawfully detained and due to the fact he was considered an “internal enemy”, given
his condition as cooperative and political leader (supra paras. 64, 69, 71, 72, and 74; infra
para. 112). Likewise, it can be determined that the detention and later disappearance of
Florencio Chitay Nech was hidden by the authorities, to the extent that they did not initiate
a serious and effective investigation given the disappearance, omitting their duty of
guarantee of the violated rights, and without giving, to this date, response about the
whereabouts of Mr. Chitay Nech.
94.
Regarding Article 5 of the American Convention, this Tribunal has held that the
forced disappearance is a violation of the right to human treatment because “the mere fact
of prolonged isolation and coercive lack of communication, represents a cruel and inhumane
treatment, [...] in contradiction to paragraphs 1 and 2 of the [Article 5 of the
Convention],”96 therefore “it results evident that in a victim of forced disappearance has had
their personal integrity violated in all its dimensions.”97
92
Case Gangaram Panday V. Suriname. Merits, Reparations and Costs. Judgment of 21 of January of 1994.
Series C No. 16, para. 47. Cf. Case Servellón García et. al. V. Honduras. Merits, Reparations and Costs. Judgment
of 21 of September of 2006. Series C No. 152, para. 89, and Case Ticona Estrada et. al. V. Bolivia, supra note 84,
para. 57.
93
Cf. Article 12(2) of the International Convention for the Protection of all Persons against Forced
Dissapearances and Article 13 of the Declaration on the Protection of All Persons against Enforced Disappearance.
Furthermore, the Declaration and the Programme of Action of Vienna, approved by the World Conference of Human
Rights, on June 25, 1993, establishes that: Además, la Statementand el Programa of Acción of Viena aprobados
por la Conferencia Mundial of Derechos Humanos el 25 of June of 1993, establece que: “[i] it is the duty of all
States, under any circumstances, to make investigations whenever there is reason to believe that an enforced
disappearance has taken place on a territory under their jurisdiction and, if allegations are confirmed, to prosecute
its perpetrators” (para. 62).
94
Cf. Case of la Masacre of Pueblo Bello V. Colombia. Merits, Reparations and Costs. Judgment of 31 of
January of 2006. Series C No. 140, para. 145; Case Anzualdo Castro, supra note 86, para. 65, and Case Radilla
Pacheco V. México, supra note 12, para. 143.
95
Cf. Case of la Masacre of Pueblo Bello V. Colombia, supra note 94, para. 145; Case Anzualdo Castro V.
Perú, supra note 86, para. 65, and Case Radilla Pacheco V. México, supra note 12, para. 143.
96
Cf. Case Velásquez Rodríguez V. Honduras. Merits, supra note 32, para. 187; Case Anzualdo Castro V.
Perú, supra note 86, para. 85, and Case Radilla Pacheco V. México, supra note 12, para. 153.