30
obstruction in the investigations persist and their purpose has been varied in
order to demonstrate the inexistence of the alleged victims.
Considerations of the Court
100. Since the State argues that the conduct of forced disappearance should not
be invoked retroactively, because it was defined as such after the time at which the
facts in this case allegedly occurred, and that “it lacks juridical logic” and is
“practically impossible that the forced disappearance of persons constitutes an
integral, continuing and permanent whole, unless this has been established in the
respective conventions,” the Court considers that it must reiterate what it has
established in its constant case law on cases of forced disappearance of persons. In
this regard, it has stated that it constitutes an unlawful act that gives rise to
multiple, continuing violations of several rights protected by the American
Convention and places the victim in a state of complete defenselessness, which
involves other related crimes; it is a crime against humanity. The State’s
international responsibility is aggravated when the disappearance is a feature of
State practice.14 Also, forced disappearance presumes disregard of the obligation to
organize the State structure so as to guarantee the rights recognized in the
Convention. Hence the importance that the State should adopt all necessary
measures to avoid such facts, investigate and punish those responsible and, also,
inform the next of kin of the whereabouts of the disappeared and compensate them,
when applicable.15
101. Starting with its first cases in 1988,16 the Court classified the series of
multiple and continuing violations of several rights protected by the Convention as
forced disappearance of persons, based on developments in the sphere of
international human rights law at that time, which years later led to the adoption of
declarations and conventions on this subject.
102. In the judgment on merits in the Velásquez Rodríguez case, delivered on July
29, 1988,17 the Court referred to the evolution of the concept of forced
disappearance of persons, particularly in the 1980s, as follows:
151.
The establishment of a Working Group on Enforced or Involuntary
Disappearances of the United Nations Commission on Human Rights, by Resolution 20
(XXXVI) of February 29, 1980, is a clear demonstration of general censure and
repudiation of the practice of disappearances, which had already received world
attention at the UN General Assembly (Resolution 33/173 of December 20, 1978), the
Economic and Social Council (Resolution 1979/38 of May 10, 1979) and the
14
Cf. Case of Molina Theissen. Reparations (Art 63(1) American Convention on Human Rights).
Judgment of July 3, 2004, Series C No. 108, para. 41.
15
Cf. the case of the 19 Tradesmen. Judgment of July 5, 2004. Series C No. 109, para. 142; Case
of Bámaca Velásquez. Judgment of November 25, 2000. Series C No. 70, paras. 128 and 129; Blake case.
Judgment of January 24, 1998. Series C No. 36, paras. 65 and 66; Castillo Páez case. Judgment of
November 3, 1997. Series C No. 34, para. 72; Blake case. Preliminary objections, supra note 8, paras. 35
and 39; Fairén Garbi and Solís Corrales case. Judgment of March 15, 1989. Series C No. 6, paras. 147 to
152; Godínez Cruz case. Judgment of January 20, 1989. Series C No. 5, paras. 163 to 167; and Velásquez
Rodríguez case. Judgment of July 29, 1988. Series C No. 4, paras. 155 to 158.
16
Cf. Velásquez Rodríguez case, supra note 15, paras. 149 to 153; Godínez Cruz case, supra note
15, paras. 157 to 161; and Fairén Garbi and Solís Corrales case, supra note 15, para. 146.
17
Velásquez Rodríguez case, supra note 15, paras. 151 and 152. Likewise Cf. Godínez Cruz case,
supra note 15, paras. 159 and 160; and Fairén Garbi and Solís Corrales case, supra note 15, para. 146.
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