31
Convention; this contributes to the conditions of impunity in which this type of act may be
repeated;74 hence the importance of the State adopting all necessary measures to avoid
such facts, and to investigate and punish those responsible.75
117. Based on the above, the Court concludes that, as of May 9, 1990, the State was
responsible for the forced disappearance of Heliodoro Portugal and, therefore, according to
the particularities of the instant case, it is responsible for the violation of the right to
personal liberty established in Article 7 of the American Convention, in relation to Article
1(1) thereof, as well as for the violation of Article I of the Convention on Forced
Disappearance, in relation to Article II thereof, as of February 28, 1996, the date on which
the State ratified this instrument, to the detriment of Heliodoro Portugal.
*
*
*
118. On other occasions, according to the characteristics of the case, the Court has
declared that a State’s international responsibility is aggravated when the forced
disappearance forms part of a systematic pattern or practice applied or tolerated by the
State. Such cases entail a crime against humanity that involves a crass disregard of the
essential principles that underlie the inter-American system.76 In the instant case, the Court
does not have competence to declare a violation as a result of the supposed systematic
pattern of forced disappearances that is alleged to have existed in 1970, and on which the
alleged “aggravated responsibility” of the State in relation Mr. Portugal’s forced
disappearance would have been based (supra paras. 23 to 38). Consequently, the Court will
not rule in this regard, beyond its considerations on the contextual facts in paragraphs 84 to
97 of this judgment.
VII
ARTICLE 13 (FREEDOM OF THOUGHT AND EXPRESSION)77 OF THE AMERICAN CONVENTION
IN RELATION TO ARTICLE 1(1) THEREOF
119. The representatives alleged the violation of Article 13 of the Convention because
they maintained that Heliodoro Portugal’s forced disappearance was motivated by his
ideology and political affiliation, and by the fact that he had expressed opinions contrary to
the military regime. The representatives considered that the violation of freedom of
expression, like the forced disappearance, was continuing over time, because it subsisted at
all times while he remained disappeared. In addition, they argued that the State had not
taken the necessary measures to investigate the facts. Lastly, they indicated that the right
of Mr. Portugal’s next of kin to have access to information on what happened, which formed
part of their right to freedom of expression, had also been violated. The Commission did not
express an opinion in this regard.
74
Cf. Case of Myrna Mack Chang, supra note 37, para. 156; Case of La Cantuta, supra note 16, para. 115,
and Case of Goiburú et al., supra note 23, para. 89.
75
Cf. Case of Goiburú et al., supra note 23, para. 89; Case of La Cantuta, supra note 16, para. 115.
76
Cf. Case of the Serrano Cruz Sisters, supra note 9, paras. 100 to 106; Case of La Cantuta, supra note 16,
para. 115, and Case of Goiburú et al., supra note 23, para. 82.
77
In this regard, Article 13 of the Convention establishes that:
Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive,
and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in
the form of art, or through any other medium of one’s choice.
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