27
particular effect on the people identified by the estate authorities as alleged members
of Sendero Luminoso or Movimiento Revolucionario Tupac Amarú (Tupac Amarú
Revolutionary Movement or MRTA).94
76.
The Court considers that, pursuant to the general obligations contained in
Articles 1(1) and 2 of the Convention, the violation of the right enshrined in Article
7(6) thereof took place, in the case at hand, as from the moment in which it was
established a restriction in the legislation by which the exercise of the right protected
was impracticable, a situation that was heightened by the context in which such writs
were not effective.
77.
As to Article 25 of the Convention, the violation of which is alleged by the
representatives, this Tribunal has held that if both Articles 25 and 7(6) of the
Convention, are examined together, "amparo" comprises a whole series of remedies
and that habeas corpus is but one of its componens.95 Apart from the foregoing, in
light that Article 7(6) of the Convention has its own legal content and the principle of
effectiveness (effet utile) is interrelated to the duly protection of all the rights
enshrined in the treaty, the Tribunal considers it is unnecessary to analyze such
provision in connection with Article 25 of the Convention.
78.
In short, the denial to acknowledge the detention and to disclose the fate or
whereabouts of Kenneth Ney Anzualdo Castro transformed his deprivation of liberty
or abduction into a forced disappearance, according to the elements included in it,
even when, like in this case, the next-of-kin turned to different instances and
authorities asking for information and letting them know about the disappearance.
79.
Evidently, the detention of Kenneth Ney Anzualdo Castro constituted an act of
abuse of power, it was not ordered by a competent authority and its purpose was not
to bring him before a court or another legally authorized officer to decide about the
lawfulness of such detention; instead, it was the first act to perpetrate his
disappearance. Apart from denying his detention and disclosing his whereabouts, the
establishment of clandestine detention centers was an aggravating circumstance to
foster complex criminal activities. In sum, the estate agents acted outside the law,
taking advantage of the structure and premises of the State to perpetrate the forced
disappearance of people by means of the systematic nature of the repression to which
certain sectors of the population identified as subversive or terrorists or, in other way,
opponents to the government, were subjected.
80.
It is a paradigm that the activities carried out to perpetrate this disappearance
were addressed against university students, which was intended not only to cause the
disappearance itself but also to create “a general state of anguish, insecurity and
fear”,96 in the social as well as in the intellectual sectors of the society. According to
the Truth and Reconciliation Commission, the forced disappearance has affected
mostly university students since state authorities considered that some universities
were subversive centers. Hence, after the coup d' état of 1992, an “integral strategy”
was implemented and the counter-subversive operations of the Armed Forces were
93
Cf. Final Report of the CVR, 2003, volume VIII, General Conclusions, para. 123 to 131, available
at http://www.cverdad.org.pe/ifinal/index.php
94
Cf. Case of Gómez Palomino V. Peru, supra note 63, para. 54.1.
95
Cf. The Habeas Corpus in Emergency Situations (art. 27.2, 25(1) and 7(6) American Convention
of Human Rights), supra note 90, para. 34.
96
Cf. Case of Velásquez Rodríguez V. Honduras. Merits, supra note 11, para. 149.
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