In cases of forced disappearance, given the multiple and complex nature of this serious
human rights violation, the Tribunal reconsiders its previous position and deems it is
possible that, in this type of cases, the forced disappearance may entail a specific violation of
said right: despite the fact that the disappeared person can no longer exercise and enjoy
other rights, and eventually all the rights to which he or she is entitled, his or her
disappearance is not only one of the most serious forms of placing the person outside the
protection of the law but it also entails to deny that person's existence and to place him or
her in a kind of limbo or uncertain legal situation before the society, the State.165
167.
As regards the right to humane treatment, in particular, the Inter-American Court has
recognized that forced disappearance is a violation of that right, for “prolonged isolation and deprivation of
communication are in themselves cruel and inhuman treatment….”166 Specifically, the Court has established
that it is clear that the right to humane treatment is violated in all its dimensions in cases of forced
disappearance.167
168.
In addition, and as indicated in the facts proven, evidence in the form of indicia or
presumptions is especially important in cases in which forced disappearance is alleged and in which it can be
shown that there is a state practice of disappearances carried out by a government or at least tolerated by it.
Regarding indirect and circumstantial evidence, in the case of Blake v. Guatemala, the Inter-American Court
noted:
The Court deems it possible for the disappearance of a specific individual to be
demonstrated by means of indirect and circumstantial testimonial evidence, when taken
together with their logical inferences, and in the context of the widespread practice of
disappearances. In a case such as this, the Court has always maintained that a judgment can
be based on evidence other than direct documentary and testimonial evidence.
Circumstantial evidence, indications, and presumptions may also be admitted when they
lead to consistent conclusions with regard to the facts. 168
169.
The Court has also indicated that:
The Commission's argument relies upon the proposition that the policy of disappearances,
supported or tolerated by the Government, is designed to conceal and destroy evidence of
disappearances. When the existence of such a policy or practice has been shown, the
disappearance of a particular individual may be proved through circumstantial or indirect
evidence or by logical inference. Otherwise, it would be impossible to prove that an
individual has been disappeared.169
2.
Analysis of the specific cases
170.
Mindful of the foregoing, the Commission will analyze, in this section, whether in the case of
the five alleged victims one finds the constitutive elements of forced disappearance of persons in the
165 I/A Court HR, Case of Anzualdo Castro v. Peru. Preliminary Objection, Merits, Reparations and Costs. Judgment of September
22, 2009. Series C No. 202, para. 90.165
166 I/A Court HR, Case of Velásquez Rodríguez v. Honduras. Judgment of July 29, 1988. Series C No. 4, paras. 156 y 187; Case of
the Miguel Castro Castro Prison. Merits, Reparations and Costs. Judgment of November 25, 2006. Series C No. 160, para. 323; I/A Court HR
Case of Ticona Estrada et al. v. Bolivia. Merits, Reparations and Costs. Judgment of November 27, 2008. Series C No. 191, para. 58.
167 I/A Court HR, Case of Ticona Estrada et al. v. Bolivia. Merits, Reparations and Costs. Judgment of November 27, 2008. Series
C No. 191, para. 58.
168
I/A Court HR. Case of Blake v. Guatemala, Judgment of January 24, 1998, Series C No. 36, para. 49.
169
I/A Court HR. Case of Velásquez Rodríguez, Judgment of July 29, 1988, Series C No. 4, para.124.