9
27. If this is like that- I use a conditional form: “if it is”-, the forced disappearance, a
fact attributable to the State, does not seem to necessarily involve a denial or
disregard for the entitlement to rights, like there would be if an individual was to be
considered "a thing", and not "an individual" (which occurs in cases of slavery, for
example) or if the personality of a social aggregate would be explicitly denied (as with
the case of indigenous groups, examined by the Inter-American Court), with the
resulting violation of individual rights that may find its source, framework and
protection in the collective rights of a group to which the personality is denied.
28. The Judgment delivered in the case of Anzualdo Castro, which causes many
questions, has set out the clarification of the issue under certain concepts that are the
basis, according to the decision itself, for the thesis by which there is a violation of
Article 3. I am not referring to mere statements taken from recognized sources, but to
the arguments with which the tribunal analyzes the recognition or disregard of the
juridical personality. It considers that this connection between forced disappearance
and the violation of Article 3 of the American Convention constitutes a piece of
information about the evolution of the international law on human rights and it
analyzes
the
disregard
of
the
juridical
personality
by
reference
to
the
possibility/impossibility of exercising rights.
29. In this aspect, the Judgment of the case of Anzualdo Castro deems that the
disappeared individual is placed outside the legal framework, given this situation. He is
in a kind of legal uncertainty, a limbo, a vacuum, outside the protection of the law. He
is deprived of having access to justice, of the recourses that justice provides to him, as
well as the protection (which is true, as we have seen, and it is established in
international treaties).
30. The Judgment goes, then, on the description of situations of fact and the narration
of infinite and evident obstacles that are contrary to the exercise of the victim's rights.
At some moment, it indicates, though it does not insist, that it is denied to the
individual the capacity of being entitled to rights, it is eliminated or cancelled by an act
attributable to the State. However, the main argument points to the impossibility of
exercise rights. This does not derive from a disregard de jure, but from a disturbance
de facto.
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