2
participated in the criminal act must be investigated, prosecuted and punished in accordance with
criminal legislation.
4.
The events in the instant case refer to an instance of forced disappearance for which the
State has acknowledged its responsibility regarding the violation of Articles 4(1), 5(1) and 5(2) of
the American Convention to the detriment of Mr. Gómez-Palomino and Article 5 to the detriment
of his mother, his daughter and his partner. Moreover, the Court has declared that the State
violated Article 5 to the detriment of the sisters and the brother of the missing party. The violation
of these two rights; i.e. the right to life and to personal integrity, in the light of the obligation to
ensure set forth in Article 1(1) of the Convention, gives rise to the duty of the State to investigate,
prosecute and punish perpetrators, and the right of the relatives to demand that said duty be
fulfilled.
5.
Once this right of the relatives of the victim arises, it is time to examine whether the State
complied with its duty, as resulting therefrom. To that effect, international enforcement authorities
have resorted to two mechanisms. One is the method adopted by the European system, which
consists in examining, in circumstances comparable to those of the instant case, what the
European Court refers to as “the procedural obligation contained in Article 2 of the European
Convention,” which sets forth the right to life. In the case of Hugh Jordan v. United Kingdom, the
Court did not examine as an independent violation the requirements of Article 6 of the Convention,
which includes the requirements of due process, but included an analysis on how the investigation
was carried in its considerations regarding the right to life. 5
6.
The other method, the one chosen by the Court in many cases (though in this judgment
the Court omitted establishing the relation between the determination of the substantive right
violation and the emergence of the right to have that violation investigated pursuant to Article 8),
consists in verifying if the rules of due process contained in Article 8 have been violated upon
complying with the obligation. I do not disagree with this method, as long as it be accepted that
the right to know the truth about the circumstances undergone by the victim whose right to life or
personal integrity has been violated, originates in the violation of a substantive right that must be
“determined” by an independent and impartial court, within reasonable time. In my opinion, this
makes it possible to apply Article 8, subparagraph one, wherein the general requirements with
which all proceedings, whether criminal, civil or of any other nature, must comply are established.
7.
In the instant case, I have not dissented with the opinion of the Court in the sense that
Article 8 has been violated, since in fact the State has not complied with the terms of Article 8 as
regards the investigation of the events that led to the disappearance of Mr. Gómez-Palominos,
which is still pending.
B)
As to Article 25:
1.
The judgment in the instant case resorts to the considerations mentioned in
paragraph 1 of this opinion in the sense that Article 25 also applies to support the validity
of the right of the relatives of Mr. Gómez-Palomino to require the State to investigate the
5
Case of Hugh Jordan v. United Kingdom, Application No. 24746/94, judgment of May 4, 2001, letter b.,
particularly paragraphs 142 to 145. See also Case of Anchova and others v. Bulgaria, Applications Nos. 43577/98 and
43579/98, judgment of February 26, 2004, particularly paragraph 141.
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