41
murder, among others, is not sufficient.67 Forced disappearance of persons is a
distinct phenomenon characterized by constant and multiple violations of several
rights enshrined in the Convention insofar as it not only involves the arbitrary
deprivation of liberty, but also violates the detained person’s integrity and security,
threatens his life, leaving him completely defenseless, and involves other related
crimes as well.
93.
The State has recognized that Mr. Santiago Gómez-Palomino was arrested by
government officials, that no information was given regarding his whereabouts, that
he was executed and that his remains are missing to this day. Consequently, the
State acknowledged its responsibility for the violation of Articles 4, 5, and 7 of the
American Convention to the detriment of Mr. Gómez-Palomino, something which
was admitted by the Court (supra paras. 35 and 36).
94. In relation to the phenomenon of forced disappearance, the Court considers that
it must examine not only the possible violations of the American Convention, but
also those that may have taken place in respect of the Inter-American Convention
on Forced Disappearance given that, among other things, this latter Convention
provides for the means to protect the human rights that are violated by the
perpetration of this type of acts.
95.
Article I of the Inter-American Convention on Forced Disappearance sets
forth that “[t]he States Parties to [said] Convention undertake:
a)
Not to practice, permit, or tolerate the forced disappearance of persons, even
in states of emergency or suspension of individual guarantees;
b)
To punish within their jurisdictions, those persons who commit or attempt to
commit the crime of forced disappearance of persons and their accomplices and
accessories;
c)
To cooperate with one another in helping to prevent, punish, and eliminate the
forced disappearance of persons, and
d)
To take legislative, administrative, judicial, and any other measures necessary
to comply with the commitments undertaken in this Convention.”
96.
This means that the States must ensure that the crime of forced
disappearance is defined in their criminal codes or statutes. Such definition is to be
enacted taking into account Article II of the aforesaid Convention, wherein the
elements the domestic statutory definition of said crime must include are listed. The
Article in question provides that forced disappearance is to be considered as:
the act of depriving a person or persons of his or their freedom, in whatever way,
perpetrated by agents of the state or by persons or groups of persons acting with the
authorization, support, or acquiescence of the state, followed by an absence of
information or a refusal to acknowledge that deprivation of freedom or to give
information on the whereabouts of that person, thereby impeding his or her recourse to
the applicable legal remedies and procedural guarantees.
67
Cf. United Nations Economic and Social Council. Report of the Working Group on Enforced or
Involuntary Disappearances. General Comments on the Declaration on the Protection of All Persons from
Enforced Disappearance of January 15, 1996. (E/CN. 4/1996/38), para. 54.
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