23
of clandestine detention centers constitute per se a breach of the obligation to
guarantee insofar as such situation directly affects the rights to personal liberty,
humane integrity and life.
64.
That, given that one of the goals of such practice is precisely to impede the
exercise of legal remedies and the pertinent procedural guarantees, whenever a
person is subject to an abduction, detention or any form of deprivation of liberty for
the purposes of his or her forced disappearance, if the victim itself cannot have
access to available resources, it is crucial that the next—of-kin or other people related
to the victim can have access to expeditious and effective judicial procedures and
recourse as a means of determining the whereabouts or health condition of a person
who has been deprived of freedom, or of identifying the official who ordered or
carried out such deprivation of freedom.73
65.
In short, whenever there is a reason74 to belief that a person has been
subjected to forced disappearance, an investigation must be conducted. This
obligation is independent from the filing of a complaint, since in cases of forced
disappearance, International Law and the general duty to guarantee, to which Peru is
bound, imposes upon States the obligation to investigate the case ex officio, without
delay and in a serious, impartial and effective way. This is a fundamental and
conditioning element for the protection of certain rights that are otherwise affected or
annulled by those situations, such as the right to life, personal liberty and personal
integrity.75 Without detriment to the foregoing, in any case, every state authority,
public or private officer who is aware of acts purported to forcibly disappear persons,
shall immediately report them.
66.
Finally, following this line of thought and as part of its obligation to establish
an appropriate legal framework so that the investigation is effective, States must, in
the first place, classify the forced disappearance of persons as an autonomous crime
in their domestic legislation, on the understanding that the criminal prosecution can
be an essential channel to prevent future human rights violations. Said classification
must include the minimum elements established in specific international instruments,
universal as well as Inter-American, for the protection of persons against forced
disappearances76 (infra paras. 164 to 167).
67.
As a result of the foregoing, this Tribunal has held that “the analysis of a possible
forced disappearance should not be approached in an isolated, divided and segmented
way, based only on the detention or possible torture or risk to lose one's life, but on the
73
Cf. in a similar sense, the obligation contained in Article X of the Inter-American on Forced
Disappearance of Persons.
74
Cf. Article 12(2) of the International Convention for the Protection of All Persons from Enforced
Disappearance and Article 13 of the Declaration on the Protection of all Persons from Enforced
Disappearance. Moreover, the Vienna Declaration and Programme of Action adopted by the World
Conference on Human Rights on June 25, 1993, established that: “it is the duty of all States, under any
circumstances, to make investigations whenever there is reason to believe that an enforced disappearance
has taken place on a territory under their jurisdiction and, if allegations are confirmed, to prosecute its
perpetrators” (para. 62).
75
Cf. Case of the Pueblo Bello Massacre V. Colombia. Merits, Reparations and Costs. Judgment of
January 31, 2006. Series C No. 140, para. 145; Case of Kawas Fernández V. Honduras, supra note 14,
para. 75; and Case of Heliodoro Portugal V. Panamá, supra note 58, para. 115.
76
Case of Gómez Palomino V. Peru, supra note 63, para. 96 and 97; and Case of Heliodoro Portugal
V. Panamá, supra note 58, para. 188 and 189; and Case of Goiburú et al. V. Paraguay, supra note 59,
para. 92.
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