35
90.
Juan Gelman, Marcelo Gelman’s father and María Claudia García
Iruretagoyena’s father-in-law, and his wife, Mara Elda Magdalena La Madrid Daltoe,
carried out their own investigation to ascertain what had happened to their son,
daughter-in-law, and the granddaughter they assumed had been born during her
parents’ captivity. 105
D.2
Legal classification
91.
In the manner that María Claudia was deprived of her liberty during the
advanced stages of her pregnancy, kidnapped in Buenos Aires by Argentine forces
and possibly Uruguayan authorities in a context of illegal detentions in clandestine
centers (“Automotores Orletti” and SID) and subsequently transported to Montevideo
under the “Operation Condor,” her deprivation of liberty was clearly illegal, in
violation of Article 7(1) of the Convention, and can only be understood as the
constitution of a complex violation of rights that is an enforced disappearance. It also
constitutes a flagrant breach of the State´s obligation to keep persons deprived of
liberty in officially recognized detention-centers, and to present them without delay
before the competent judicial authority.
92.
In the cases of enforced disappearance of persons, the right to juridical
personality, recognized in Article 3 of the American Convention, is violated as the
victims are left in an undetermined juridical situation that prevents, impairs, or
nullifies the possibility of said persons to be entitled to their rights or to effectively
exercise their rights, generally, thereby constituting one of the most serious
breaches of the State obligation to respect and guarantee human rights. 106
93.
Her transport from Argentina to Uruguay was intended to remove her from
the protection of the law in both States, in both her stay in clandestine detention
centers and the fact that she was forced to leave her country without any
immigration controls, thereby annulling her juridical personality, denying her
existence, and leaving her in a sort of legal limbo or situation of legal uncertainty
before society and the State, to which, as such, constitutes a violation of her right to
juridical personality, recognized in Article 3 of the Convention. 107
94.
On the other hand, the enforced disappearance of María Claudia García is in
violation of the right to personal integrity because the mere prolonged isolation and
coercive solitary confinement, represents cruel and inhumane treatment, which is
contrary to that stated in paragraphs 1 and 2 of Article 5 of the Convention.” 108
105
Cf. Historical Investigation on Detainees and Disappeared Persons in compliance with Article 4 of
Law 15.488 of 2007, supra note 23, Tome II pages. 205 and siguientes; Declaration rendered by Juan
Gelman during the public hearing; Rodríguez: “The Gelman Case. Journalism and human rights” (Cruz del
Sur Edition, Uruguay, 2006), evidence, folios 2987 and ss.
106
Cf. Case of Anzualdo Castro, supra note 75, para. 101, and Case of Radilla Pacheco, supra note
74, para. 157.
107
Cf. Case of Anzualdo Castro, supra note 75, para. 90; Case of Chitay Nech et al., supra note 63,
para. 98, and Case of Ibsen Cárdenas and Ibsen Peña, supra note 9, para. 98.
108
Cf. Case of Velásquez Rodríguez, supra note 20, paras. 156 and 187; Case of Chaparao Álvarez
and Lapo Iñiguez V. Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of
November 21, 2007. Series C No. 170, para. 171, and Case of Anzualdo Castro, supra note 75, para. 85.
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