57
199. In this sense, and in light of Article 19 of the American Convention, the Court
reiterates the special gravity of being able to attribute to a State Party to the
Convention the charge of having applied or tolerated within its territory a systematic
practice of abductions and illegal retention of minors227 (supra para. 177).
200. Consequently, the Court finds that the absolute lack of state action after
March 9, 1987 and until 1999, to reunite Ramiro Osorio Cristales with his biological
family and to reestablish his name and surnames, constitutes a violation of his right
to a family and right to a name, recognized in Articles 17 and 18 of the Convention,
in relation to Articles 1(1) and 19 thereof.
X
ARTICLE 5(1) (RIGHT TO HUMANE TREATMENT) 228 OF
THE AMERICAN CONVENTION, IN RELATION TO ARTICLES 1(1)
(OBLIGATION TO RESPECT THE RIGHTS) 229 AND 19 (RIGHTS OF THE CHILD)230 THEREOF
201. The Inter-American Commission has not expressly claimed the violation of
Article 5(1) of the Convention. However, it has expressed that “impunity constitutes
a breach of the State’s duty which harms the victim, its next of kin, and the society
as a whole, and is conducive to the chronic repetition of the related human rights
violations,” and, in its opinion, would derive in the right to receive reparations.
202. The representatives, in their brief of pleadings and motions, as well as in their
closing arguments, claimed the violation of Article 5 of the American Convention, in
relation to Article 1(1) of that treaty, on the grounds, inter alia, that the State has
recognized that it has not conducted a full and effective investigation leading to the
determination and eventual punishment of those responsible, nor has it performed
actions to prevent those allegedly responsible to continue to be linked to power,
which has produced sentiments of impotence, indignation and pain in the alleged
victims, and that the level of violence that characterized the massacre caused
profound suffering among the next of kin, which has persisted over the years.
203. The State did not specifically challenge the representatives’ claims regarding
this Article, but only referred to claims regarding the Court’s jurisdiction.
204. The Court observes that the Inter-American Commission, in its claims on
reparations, indicated that the impunity that persists in the instant case contributes
to the prolongation of the suffering caused to the relatives of the deceased due to the
grave violations that occurred. However, despite the gravity and nature of the
alleged human rights violations perpetrated in the instant case, that is, the denial of
justice and impunity that persists 15 years after the judicial proceeding began, as the
facts have not been clarified or prosecuted, or those responsible punished, it did not
submit before this Court the alleged violation to humane treatment recognized in
Article 5(1) of the Convention, to the detriment of the 155 alleged victims of the
case.
227
Cf. Case of the “Street Children” (Villagrán Morales) v. Guatemala. Merits. Judgment of November
19, 1999. Series C. No. 63, para. 191, and Juridical Condition and Human Rights of the Child. Advisory
Opinion OC-17/02, supra note 204, para. 24.
228
In this regard, Article 5(1) indicates that “[e]very person has the right to have his physical,
mental, and moral integrity respected.”
229
Cf. Article 1(1), supra note 41.
230
Cf. Article 19, supra note 165.
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