43
140. The pluri-offensive and continued or permanent characterization of forced
disappearance is inferred not only from the definition included in Article III of the InterAmerican Convention on Forced Disappearance, to which Mexico is party since March 9,
2002, its travaux préparatoires,122 preamble and regulations,123 but also from other definitions
included in different international instruments,124 that, similarly, mention the following as
concurring and constitutive elements of forced disappearance: a) the deprivation of freedom;
b) the direct intervention of state agents or their acquiescence, and c) the refusal to
acknowledge the arrest and reveal the fate or whereabouts of the interested person.125
Additionally, the jurisprudence of the European Human Rights System,126 as well as that of
several Constitutional Courts of the American states and high national courts127 coincide with
the indicated characterization.
141. From the aforementioned, it can be inferred that, since one of the objectives of forced
disappearance is to prevent the exercise of the appropriate legal recourses and procedural
guarantees, once a person has been submitted to a kidnapping, detention, or any form of
122
Cf. Annual Report of the Inter-American Commission of Human Rights 1987-1988, Chapter V.II. This
crime “is permanent when it is no consummated in an instantaneous manner but permanently and it is prolonged
throughout the time in which the person continues to be missing.” (OEA/CP-CAJP, Report of the President of the
Work Group In Charge of Analyzing the Project of the CIDFP, doc. OEA/Ser.G/CP/CAJP-925/93 rev.1, of
25.01.1994, p. 10).
123
Article II of the CIDFP states that “[f]orced disappearance is considered to be the act of depriving a person
or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of
persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information
or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person,
thereby impeding his or her recourse to the applicable legal remedies and procedural guarantee.” Article III of that
instrument states, in what is relevant, that: said crime will be considered continued or permanent as long as the
fate or whereabouts of the victim are not established.”
124
Cf. Economic and Social Council of the United Nations, Report of the Work Group on Forced or Involuntary
Disappearance of Persons. General Observation to Article 4 of the Statement on the Protection of all Persons
against Forced Disappearance of January 15, 1996. (E/CN. 4/1996/38), para. 55, and Article 2 of the International
Convention for the Protection of all Persons against Forced Disappearances.
125
Cf. Case of Gómez Palomino v. Peru, supra note 51, para. 97; Case of Ticona Estrada v. Bolivia, supra
note 23, para. 55; and Case of Anzualdo Castro v. Peru, supra note 44, para. 60.
126
Cf. Eur. Ct. H.R., Case of Kurt v. Turkey, 15/1997/799/1002, 25 May 1998, paras. 124 through 128; Case
of Cakici v. Turkey, Application no. 23657/94, 8 July 1999, paras. 104 through 106; Case of Timurtas v. Turkey,
Application no. 23531/94, 13 June 2000, paras. 102 through 105; Case of Tas v. Turkey, Application no. 24396/94,
14 November 2000, paras. 84 through 87; Case of Cyprus v. Turkey, supra note 24, paras. 132 through 134 and 147
through 148.
127
Cf. Case of Marco Antonio Monasterios Pérez, Supreme Court of Justice of the Bolivarian Republic of
Venezuela, judgment of August 10, 2007 (declaring the pluri-offensive and permanent nature of the crime of forced
disappearance); Supreme Court of Justice of the Nation of Mexico, Thesis: P./J. 87/2004, “Forced disappearance of
persons. The term for its expiration shall start to be computed as of the moment in which the victim is found or his
whereabouts are established” (stating that forced disappearances are permanent crimes and that the expiration
shall be computed as of the moment in which its commission ceases); Case of Caravana, Criminal Chamber of the
Supreme Court of Chile, judgment of July 20, 1999; Case of immunity of Pinochet, Supreme Court of Chile in Full,
judgment of August 8, 2000; Case of Sandoval, Court of Appeals of Santiago, Chile, judgment of January 4, 2004
(all stating that the crime of forced disappearance is continuous, against humanity, non-extinguishable, and nonamestiable); Case of Vitela et al., Federal Chamber of Criminal and Correctional Appeals of Argentina, judgment of
September 9, 1999 (stating that forced disappearances are continuous crimes against humanity); Case of José
Carlos Trujillo, Constitutional Court of Bolivia, judgment of November 12, 2001 (in the same sense); Case of
Castillo Páez, Constitutional Court of Peru, judgment of March 18, 2004 (stating, based on that ordered by the
Inter-American Court in the same case, that forced disappearance is a permanent crime until the whereabouts of
the victim are established); Case of Juan Carlos Blanco and Case of Gavasso et al., Supreme Court of Uruguay,
judgment of October 18, 2002 and judgment of April 17, 2002, respectively (in the same sense).
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