82
violations of human rights have no legal effect and, therefore, can not continue to
obstruct the investigation of the facts of this case and the identification and
punishment of those responsible, nor can they have the same or similar impact on
other cases of serious violations of human rights enshrined in the American
Convention that may have occurred in Uruguay. 292
233. The obligation to investigate the facts in the case of enforced disappearance is
specified in the provisions of Articles III, IV, V, and XII of the Inter-American
Convention on Forced Disappearance of Persons, in regard to the investigation of
enforced disappearance as a continuing offense, the establishment of jurisdiction to
investigate said crime, the cooperation between States for the criminal prosecution
and possible extradition of the alleged perpetrators, and access to information
regarding the places of detention.
234. Similarly, given the involvement, not only of a systematic pattern in which
multiple authorities may have been involved, but also of a cross-border/interstate
operation, the State should have used and applied the appropriate legal instruments
for the analysis of the case, the criminal codifications that are in-line with the facts,
and the design of an appropriate investigation able to collect and systematize the
vast and diverse information that has been reserved or made not easily accessible
and includes the necessary inter-state cooperation.
235. In the same sense, the procedures initiated by Juan Gelman and the one
opened in 2008 through the efforts of Maria Macarena Gelman, were brought under
the crime of homicide, thereby excluding other crimes such as torture, enforced
disappearance, and theft of identity, which allows the claim to be declared, by the
domestic tribunal, as prescribed by law.
236. It is necessary to reiterate that this is a case of serious violations of human
rights, particularly enforced disappearance, and therefore it is this codification that
should have priority in the investigations that appropriately should be opened at the
domestic level. As established by this Court, given the involvement of a crime of a
permanent nature, namely, that the crime is prolonged in time,
when the
codification of enforced disappearance enters into force, the new law applies, without
this implying a retroactive application. 293 In this sense, tribunals of the highest levels
of the States of the American continent have rendered rulings and applied criminal
norms in cases concerning acts that began to toll before the respective criminal
codification entered into force. 294
292
Cf. Case of Barrios Altos. Merits, supra note 288, para. 44; Case of La Cantuta V. Perú. Merits,
Reparations and Costs. Judgment of November 29, 2006. Series C No. 162, para. 175, and Case of Gomes
Lund et al. (Guerrilha do Araguaia), supra note 16, para. 174.
293
Cf. Case of Tiu Tojín, supra note 13, para. 44, para. 87; Case of Ibsen Cárdenas and Ibsen Peña,
supra note 9, para. 201, and Case of Gomes Lund et al. (Guerrilha do Araguaia), supra note 16, para.
179.
294
Cf. Supreme Court of Justice of Peru, Judgment of March 18, 2006, Exp: 111-04, D.D Cayo
Rivera Schreiber; Constitutional Tribunal of Peru, Judgment of March 18, 2004, Case file No. 2488-2002HC/TC, para. 26 and Judgment of December 9, 2004, Case file No. 2798-04-HC/TC, para. 22; Supreme
Court of Justice of México, Thesis: P./J. 49/2004, Federal Judicial Weekly and its Gazette,
Novena Época, Plenum,Constitutional Chamber of the Supreme Tribunal of Justice of the Bolivarian
Republic of Venezuela, Judgement of August 10, 2007,and Constitutional Court of Colombia, Judgment C580/02 of July 31, 2002.
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