53
particular circumstances of the case must be taken into account, and the implementation of the said
guarantee obligations.231
138. In this case, there are two key moments at which the obligation of prevention must
be analyzed. The first is before the disappearance of the presumed victim, and the second is
before the discovery of her body.
139. Regarding the first moment – before the victim’s disappearance – the Court, as it has
in the past,232 considers that the eventual failure to prevent the disappearance does not
entail per se the international responsibility of the State because, even though it was aware
or should have been aware (supra para. 79) of a situation where violent acts, including acts
committed against women and even girl children, were perpetrated, it has not been
established that it knew of a real and immediate danger for the victim in this case. Despite
the fact that the context of this case and the “international obligations impose on the State
an increased responsibility as regards the protection of women,” 233 especially girls, which
includes the obligation of prevention (supra para. 136), the State does not have an
unlimited responsibility in relation to any illegal act against them. Furthermore, regarding
this first moment, the Court notes that, prior to December 2001, the State had
implemented actions in relation to the problem of violence against women (supra para. 82).
140. In the instant case, the Court observes that the arguments of the representatives
and the Commission related to the second moment indicated above; in other words, the
time that elapsed between the report filed by Mrs. Franco Sandoval and the discovery of her
daughter’s body. Thus, they argue that the State was aware of a risk as of the report filed
before the authorities by María Isabel’s mother (supra para. 93).
141. Regarding this moment – before the discovery of the body – it must be decided
whether, in view of the particular circumstances of the case and the context in which they
occurred, the State was aware that a real and immediate danger existed that María Isabel
would be attacked and whether, consequently, an obligation of due diligence arose that,
since it was more rigorous, required the implementation of a thorough search. In particular,
the prompt and immediate action of the police, prosecution and judicial authorities is
necessary ordering prompt and necessary measures aimed at discovering the victim’s
whereabouts. Adequate procedures should exist for reports and these should lead to an
effective investigation from the very start. The authorities should presume that the missing
person is still alive until the uncertainty about his or her fate has been resolved.234
142. Based on the above, in order to determine if the State is internationally responsible,
the Court must decide whether, in this specific case, the girl was in a dangerous situation
and whether, in this regard, the State, acting within its sphere of competence, could have
adopted measures that could reasonably have been expected to prevent or to avoid that
situation. To this end, the Court must assess: (a) whether the State was, or should have
been, aware of the situation of real and immediate danger of María Isabel Veliz Franco; 235
(b) whether, being aware, it had a reasonable possibility of preventing or avoiding the
perpetration of the crime and, if so,236 (c) whether it exercised due diligence with measures
or actions to avoid the violation of the rights of this child.237
231
Case of the Pueblo Bello Massacre v. Colombia. Judgment of January 31, 2006. Series C No. 140, para.
123; Case of González et al. (“Cotton Field”), supra, para. 280, and Case of Luna López, supra, para. 120.
232
Case of González et al. (“Cotton Field”), supra, para. 282.
233
Case of González et al. (“Cotton Field”), supra, para. 282.
234
Case of González et al. (“Cotton Field”), supra, para. 283.
235
Case of the Pueblo Bello Massacre, supra, para. 123, and Case of Luna López, supra, para. 112.
236
Case of the Pueblo Bello Massacre, supra, para. 123, and Case of the Afro-descendant Communities of the
Cacarica River Basin (Operation Genesis) v. Colombia. Preliminary objections, merits, reparations and costs.
Judgment of November 20, 2013. Series C No. 270, para. 224.
237
Case of Durand and Ugarte v. Peru. Merits. Judgment of August 16, 2000. Series C No. 68, para. 122, and
Case of Mendoza et al., supra, para. 214.