10
31. Are we talking, then, of the disregard of the juridical personality, with all that it
entails or are we referring to an extreme and very serious impediment to the exercise
of rights, which indisputably exists in the forced disappearance? If it is the last option,
then what it is being violated is the exercise of rights whose entitlement- token of the
juridical personality- remains with the existence of the person that has disappeared,
but not died. Therefore the juridical personality subsists.
32. It is worth remembering that Civil Law has developed certain precepts addressed
to ensure the existence of rights of he who disappears (precepts historically developed,
certainly, by events different to the ones that determine the forced disappearance that
violates the right to freedom and access to justice), like the declaration of absence
and, to an extent, the presumption of death. Hence, the person declared to be absent
is not deprived of all the rights – that is, his juridical personality is not disregarded-,
but it is therefore noticeable his or her impossibility to exercise rights he or she is
entitled to and does not lose, and certain individual is appointed to exercise or
preserve them while the absent person returns. In sum, his juridical personality
continues. I emphasize that I am not strictly comparing the absence under the terms
of Civil Law to the forced disappearance under the terms of Criminal Law and
International Law on human rights, but invoking information of such disappearance
that allow to note the difference between the capacity to be entitled to and the
capacity
to
exercise,
precisely
in
a
situation
that
is
marked
by
the
absence/disappearance of the holder of rights.
33. Perhaps, I could resort to another example. When a State agent seriously injures a
person, entirely depriving such individual from the capacity to reason and even, the
capacity for consciousness, it generates a situation that prevents the victim, totally
and absolutely, from exercising any right. It constitutes, of course, a violation of the
right to humane integrity. Should we also sustain that there is a violation of the right
to juridical personality because the victim is, in fact, in a kind of limbo or vacuum? It
will be said, of course, that other people could exercise some rights of the injured
party, acting on his or her behalf. This could happen in the case of the disappeared
person.
34. Maybe the analysis of the elements that make up the forced disappearance is not
finished. There are areas pending a careful evaluation. The existence of several and
different arguments, which are good arguments in the end, coupled with the
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