52
165. Thus, as noted previously, the acts that constitute forced disappearance are permanent
in nature for as long as the victim’s whereabouts are unknown or his remains are not found.
However - particularly in relation to the latter aspect- the Court has reiterated that it is not
merely a matter of finding the remains of a certain person but that this, logically, must be
accompanied by tests or analyses that make it possible to prove that, in fact, those remains
correspond to that person. Therefore, in cases of presumed forced disappearance in which there
are indications that the alleged victim has died, the determination of whether a forced
disappearance existed and has ceased, and when the remains have been located, necessarily
involves establishing, in the most reliable manner, the identity of the individual to whom the
remains belong. In this regard, the relevant authorities must proceed to the prompt exhumation
of the mortal remains so that these may be examined by a competent professional. 194 Such
exhumation must be carried out in a manner that protects the integrity of the remains in order
to establish, to the extent possible, the identity of the deceased person, the date of death, the
manner and cause of death, and the existence of possible injuries or signs of torture. 195 Until the
remains are duly located and identified, the forced disappearance continues to be executed. 196
166. The Court recalls that a forced disappearance is constituted by multiple violations of
several rights, owing to the multiple acts which, combined towards a single purpose, violate
permanently, while they subsist, rights protected by the Convention. 197 Thus, the legal analysis
of a possible forced disappearance must be consistent with the complex violation of human rights
that it entails, and should not focus in an isolated, divided and fragmented manner only on the
detention, or the possible torture, or the risk of loss of life. 198 In that regard, its analysis must
encompass the totality of the facts submitted to the consideration of the Court. Only in this way is
the legal analysis of the forced disappearance consistent with the complex violation of human
rights involved. 199 Given the multiple and complex nature of forced disappearance, the Court will
analyze in the following order the elements that, taken together, serve to determine whether in
this case the victims were forcibly disappeared: a) the refusal of the military authorities to
acknowledge the detention of the victims in the first days after the events occurred; b) the
modus operandi used to destroy evidence during the first days after the events; c) uncertainty
regarding the evidence collected on July 18, 1991; d) the registration of death certificates in
1991 and 1992 with false ages, and e) procedures related to the search, recovery, analysis and
eventual identification of human remains.
a) The refusal of the military authorities to acknowledge the detention of the victims in the
first days after the events occurred
Disappearances, Information Leaflet No. 6/REV.3, Office of the United Nations High Commissioner for Human Rights,
2009, p. 14, and Report of the Working Group on Enforced and Involuntary Disappearances, General Comment on the
definition of enforced disappearances, A/HRC/7/2, January 10, 2008, p. 14, para. 10. The foregoing, “even though [the
detention] is of short duration.” Report of the Working Group on Enforced and Involuntary Disappearance, A/HRC/7/2,
January 10, 2008, p. 95, para. 427.
194
Cf. Case of Ibsen Cárdenas and Ibsen Peña v. Bolivia, supra, para. 82, and Case Gudiel Álvarez and other ("Diario
Militar") v. Guatemala, supra, para. 207.
195
Cf. Case of La Cantuta v. Peru, supra, para. 114, and Case of Ibsen Cárdenas and Ibsen Peña v. Bolivia, supra,
para. 82. In this regard see the “Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and
Summary Executions”, recommended by the United Nations Economic and Social Council in Resolution 1989/65 of May 24,
1989. See also, the “Model Protocol for Disinterment and Analysis of Skeletal Remains” of the Manual on the Effective
Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, U.N. Doc. ST/CSDHA/12 (1991).
196
Cf. Case of La Cantuta v. Peru, supra, para. 114, and Case Gudiel Álvarez et al. (“Diario Militar”) v. Guatemala,
supra, para. 207.
197
Cf. Case of Radilla Pacheco v. Mexico. Preliminary objections, merits, reparations and costs. Judgment of November 23,
2009. Series C No. 209, para. 138, and Case of García and Family Members v. Guatemala, supra, para. 99.
198
Cf. Case of Heliodoro Portugal v. Panama. Preliminary objections, merits, reparations and costs. Judgment of August 12,
2008. Series C No. 186, para. 112, and Case of García and Family Members v. Guatemala, supra, para. 99.
199
Cf. Case of Heliodoro Portugal v. Panama, supra, para. 112, and Case of Osorio Rivera and Family Members v. Peru,
supra, para. 116.