this, the Tribunal assumes that the detention was not legal and that it was carried out in
an arbitrary fashion.
103. Therefore, the Court considers it reasonable to affirm that Iván Eladio Torres
Millacura was detained based on Article 10.b) of Law 815 and that he was forcibly
disappeared by agents of the State, which was not only contrary to his right to personal
liberty but, due to the nature of enforced disappearance, also placed him in a grave
situation of vulnerability and at risk of suffering irreparable damage to his personal
integrity 92 and to his life. 93 This Court has held that enforced disappearance is a
violation of the right to humane treatment because “the mere fact of prolonged isolation
and coercive lack of communication represents cruel and inhumane treatment, [...] in
contravention of paragraphs 1 and 2 of [Article 5 of the Convention].” 94
104. As such, the Court considers that the content itself of the right to juridical
personality is that, specifically, a person be recognized,
[e]verywhere as a subject of rights and obligations, and [who has the right to] enjoy
fundamental civil rights[, which] implies the capacity of being the bearer of rights (capacity and
enjoyment) and duties; the violation of that acknowledgment presumes disregarding in absolute
95
terms the possibility to be a bearer of [civil and fundamental] rights and duties.
105. This right represents a parameter for determining whether an individual is a
bearer or not of the rights at issue and whether the individual can exercise those rights,
96
for which reason the violation of that recognition makes the individual vulnerable to
the State and to private individuals. 97 In this way, the content of the right to recognition
of juridical personality refers to the correlative general duty of the State to establish the
juridical means and conditions under which this right can be freely and fully exercised by
its bearers 98 or, should it be the case, the obligation to not violate that right. 99 This
Tribunal has found that, in cases of enforced disappearance, due to the multifaceted and
complex character of this grave violation of human rights, its execution can entail the
specific violation of the right to recognition of juridical personality. Beyond the fact that
the disappeared individual cannot continue enjoying and exercising other - and possibly
all - the rights borne by the individual, disappearing the individual is not only one of the
most serious ways of placing a person outside the reach of the law, but also denies that
person's existence itself, leaving the individual in a type of limbo or situation of juridical
92
Cf. Case of Radilla Pacheco V. México, supra note 23, para. 152, and Case of Ibsen Cárdenas and
Ibsen Peña V. Bolivia, supra note 14, para. 94.
93
Cf. Case of Radilla Pacheco V. México, supra note 23, para. 152.
94
Cf. Case of Velásquez Rodríguez V. Honduras, supra note 21, para. 187; Case of Chitay Nech et al. V.
Guatemala, supra note 69, para. 94, and Case of Gelman V. Uruguay, supra note 76, para. 94.
95
Cf. Case of Bámaca Velásquez V. Guatemala. Merits. Judgment of November 25, 2000. Series C No.
70, para. 179; Case of the Xákmok Kásek Indigenous Community. v. Paraguay. Merits, Reparations and Costs.
Judgment of August 24, 2010. Series C No. 214, para. 248, and Case of Ibsen Cárdenas and Ibsen Peña V.
Bolivia, supra note 14, para. 96.
96
Cf. Case of the Sawhoyamaxa Indigenous Community V. Paraguay. Merits, Reparations and Costs.
Judgment of March 29, 2006. Series C No. 146, para. 188; Case of The Xákmok Kásek Indigenous Community.
V. Paraguay, supra note 96, para. 249, and Case of Ibsen Cárdenas and Ibsen Peña V. Bolivia, supra note 14,
para. 97.
97
Cf. Case of the Girls Yean and Bosico v. Dominican Republic. Preliminary Objections, Merits,
Reparations and Costs. Judgment of September 8, 2005. Series C No. 130, para. 179, Case of The Xákmok
Kásek Indigenous Community. V. Paraguay, supra note 96, para. 249, and Case of Ibsen Cárdenas and Ibsen
Peña V. Bolivia, supra note 14, para. 97.
98
Cf. Case of Radilla Pacheco V. México, supra note 23, para. 156; Case of The Xákmok Kásek
Indigenous Community. V. Paraguay, supra note 96, para. 249, and Case of Ibsen Cárdenas and Ibsen Peña V.
Bolivia, supra note 14, para. 97.
99
Cf. Case of Radilla Pacheco V. México, supra note 23, para. 156, and Case of Ibsen Cárdenas and
Ibsen Peña V. Bolivia, supra note 14, para. 97.
32
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