137.
In that regard, the Court takes note, as it has in other cases, 168 that Colombia has a set of search
mechanisms for missing persons. The Court observes that, in her statement before the Court at a public
hearing, the witness Elsa María Moyano stated that there are both judicial and non-judicial bodies in
Colombia responsible for searching for missing persons, and that these have trained staff and search
strategies. These bodies are the Prosecutor General of the Nation and the Search Unit for Missing Persons.
She also noted that they have a cooperative agreement and technical forums for joint work. Furthermore,
the witness stated that although the National Search Plan was created by Law 589 in the year 2000, it is
also necessary to “develop [...] strategies both for finding those criminally responsible and for finding the
disappeared person” for cases that preceded the creation of that law. 169
138.
Accordingly, the Court orders the State to reinforce the steps it is taking to find the victim. The
State shall work diligently and through appropriate legal and/or administrative channels, making every
effort to find Óscar Iván Tabares Toro or identify his remains without delay. To that end, the State shall
marshal appropriate human, technical, and scientific resources and develop any forms of institutional
collaboration that are found to be necessary or advantageous. As part of these efforts, State shall develop
a family communication strategy and facilitate agreement on a framework for coordinated action in order
to seek the family’s participation, knowledge, and presence, in accordance with the relevant guidelines
and protocols, while maintaining appropriate protection measures. If it is determined that the victim is
deceased, his remains shall be turned over to the family after conclusive confirmation of identity, without
delay and at no cost to the family. Moreover, the State shall cover the funeral expenses, if applicable, by
mutual agreement with the family members. 170
139.
This Court notes that, based on “the International Convention for the Protection of All Persons
from Enforced Disappearance 171 and other pertinent international instruments,” 172 the United Nations
Committee on Enforced Disappearances adopted the “Guiding Principles for the Search for Disappeared
Persons.” 173 The Court considers it important that they be taken into account in complying with the
reparation measure ordered. The Court underscores the following in particular:
a)
The search for a disappeared person should continue until his or her fate and/or
whereabouts have been determined with certainty, which means that the person “is again under
the protection of the law” or, if found to be deceased, “has been fully identified.” 174
b)
The victims’ relatives, who are also victims, and individuals who represent or assist them
have the right to participate in the search, which necessitates, among other things, access to
Cf. Case of Movilla Galarcio v. Colombia, supra, para. 205. See also the State’s final oral arguments during
the public hearing of this case.
169
Statement of the witness Elsa María Moyano in the public hearing before the Court on November 8, 2022.
170
Cf. Case of Contreras et al. v. El Salvador. Merits, reparations, and costs. Judgment of August 31, 2011.
Series C No. 232, paras. 191 and 192, and Case of Movilla Galarcio v. Colombia, supra, para. 206.
171
Ratified by Colombia on July 11, 2012. It entered into force for the State on the thirtieth day after the date
of the deposit of the instrument of ratification, pursuant to Article 39(2) of the convention. Cf. Case of Movilla Galarcio
v. Colombia, supra, para. 207.
172
The document clarifies that the principles “also take into account the experience of other international bodies
and various countries around the world” (Introduction, para. 1). Guiding principles for the search for disappeared
persons, UN Committee on Enforced Disappearances, April 16, 2019. Cf. Case of Movilla Galarcio v. Colombia, supra,
para. 207.
173
Approved by the Committee on Enforced Disappearances at its 16th session (April 8–18, 2019). Doc.
CED/C/7. Cf. Case of Movilla Galarcio v. Colombia, supra, para. 207.
174
However, the document clarifies in Principle 7(4) that “[i]f the disappeared person has not been found and
there is credible evidence beyond a reasonable doubt of his or her fate or whereabouts, the search may be suspended
when it is not physically possible to recover the person and once all obtainable information has been exhaustively
analysed and all possible scenarios investigated. This decision should be taken in a transparent manner and requires
the prior and informed consent of the family members or persons close to the disappeared person.” Likewise, the
Working Group on Enforced or Involuntary Disappearances has noted that, although the right of relatives to know the
truth of the fate and whereabouts of the disappeared person is “not subject to any limitation or derogation,” “there is
no absolute obligation of result,” because: “[i]n certain cases, clarification is difficult or impossible to attain, for
instance when the body, for various reasons, cannot be found. [...] The State still has an obligation to investigate until
it can determine by presumption the fate or whereabouts of the person.” (UN. Human Rights Council. Working Group
on Enforced and Involuntary Disappearances. Report of the Working Group on Enforced and Involuntary
Disappearances. January 26, 2001. A/HRC/16/48. Para. 39 General comments General comment on the right to the
truth in relation to enforced disappearance. No. 4). Cf. Case of Movilla Galarcio v. Colombia, supra, para. 207.
168
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