53
3. Considerations of the Court
145. The Court has established that the right of access to justice requires that the facts
investigated and, as appropriate, the corresponding criminal responsibilities be determined
effectively within a reasonable period of time. Hence, given the need to guarantee the rights
of those who have been prejudiced, a prolonged delay may, in itself, constitute a violation of
judicial guarantees.228 The Court has also indicated that the State bodies responsible for
investigating the forced disappearance of persons in order to determine the whereabouts of
those persons and clarify what happened, identify those responsible, and punish them, must
perform their tasks diligently and exhaustively.229 It is opportune to recall that, in cases of
forced disappearance, it is crucial that prompt and immediate action be taken by
prosecutorial and judicial authorities to order timely and necessary measures aimed at
determining the whereabouts of the victim or the place where the victim might be found
deprived of liberty.230 In this case, that obligation was reinforced by the fact that the victims
were children at the time of the facts, some of them in their infancy, so that the State had
the obligation to ensure they were found as soon as possible. The legal rights involved in the
investigation make it obligatory to redouble efforts as regards the measures that must be
taken to fulfill this objective, because the passage of time has a directly proportionate
relationship to the limitations to – and, in some cases, the impossibility of - obtaining
evidence and/or testimony, making it difficult and even rendering ineffective or invalid, the
probative measures taken in order to elucidate the facts investigated,231 identify the possible
authors and participants, and determine possible criminal responsibilities. Despite the
foregoing, national authorities are not exempt from making all necessary efforts to comply
with their obligation to investigate.232 If the State bodies proceed in an omissive or negligent
manner, this is not compatible with the obligations arising from the American Convention;
particularly if essential human rights are at stake.233 Thus, the States must provide the
corresponding authorities with the necessary logistic and scientific resources to collect and
process evidence and, in particular, with the authority to access pertinent documentation
and information to investigate the facts denounced and to obtain indications or evidence of
the whereabouts of the victims.234
146. In addition, in cases such as this one, the Court has found that the authorities in
charge of the investigation have the obligation to ensure that, during its course, they assess
systematic patterns that allow the perpetration of grave human rights violations,235 such as
those committed in this case. In order to guarantee its effectiveness, the investigation must
228
Cf. Case of Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago. Merits, reparations and costs.
Judgment of June 21, 2002. Series C No. 94, paras. 142 to 145; Case of Ibsen Cárdenas and Ibsen Peña, supra
note 100, para. 152, and Case of Chitay Nech et al., supra note 98, para. 196.
229
Cf. Case of Ibsen Cárdenas and Ibsen Peña, supra note 100, para. 173.
230
Cf. Case of Anzualdo Castro, supra note 109, para. 134; Case of Ibsen Cárdenas and Ibsen Peña, supra
note 100, para. 167, and Case of Radilla Pacheco, supra note 25, para. 215.
231
Cf. Case of Heliodoro Portugal, supra note 112, para. 150; Case of Ibsen Cárdenas and Ibsen Peña, supra
note 100, para. 167, and Case of Chitay Nech et al., supra note 98, para. 196.
232
Cf. Case of Anzualdo Castro, supra note 109, para. 135; Case of Ibsen Cárdenas and Ibsen Peña, supra
note 100, para. 167, and Case of Radilla Pacheco, supra nota 25, para. 215.
233
Cf. Case of Ibsen Cárdenas and Ibsen Peña, supra note 100, para. 173.
234
Cf. Case of Tiu Tojín, supra note 18, para. 77; Case of Ibsen Cárdenas and Ibsen Peña, supra note 100,
para. 168 and Case of Radilla Pacheco, supra note 25, para. 222.
235
Cf. Case of the La Rochela Massacre v. Colombia. Merits, reparations and costs. Judgment of May 11,
2007. Series C No. 163, para. 156; Case of Ibsen Cárdenas and Ibsen Peña, supra note 100, para. 166, and Case
of Radilla Pacheco, supra note 25, para. 206.
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