4
13.
It is evident that this title alludes to the capacity to enjoy rights, which
belongs to human beings in general, but not necessarily to the enjoyment or
exercise of all the rights. Indeed, the scope of the enjoyment, that is, the definition
or concrete integration of the said capacity, and also the possibility of exercising the
rights are subject to positive law (objective) in function of the place of the individual
in the totality of the juridical relations in which he participates or within which he is
inserted. A minor, who lacks maturity and competence to determine his own
conduct, freely and in an informed manner, and thus produce juridical consequences
that may benefit or prejudice him, cannot have title to the enjoyment and exercise of
rights that are, to the contrary, attributed to the adult person. There are numerous
and reasonable distinctions in this area; thus, between the situation of the citizen,
who is assigned full political rights, and the person who is not a citizen; or between
the head of the household who has specific powers and obligations and the person
who lacks them; or between the professional who has a distinctive status, and the
person who does not have that preparation and activity, etcetera.
14.
In view of the foregoing, disregarding the juridical personality would be
equivalent to the absolute denial of the possibility that a human being could have
title to rights and obligations. In this case, he would be treated as an object - the
matter of a juridical relation, not the subject of it - or he would be reduced to the
condition of slave. Accordingly, we can infer that the right to the recognition of
juridical personality has its own substance or entity and cannot be seen as a
reflection of a de facto situation that would deprive the individual of the possibility of
exercising the rights to which, however, he has not been refused ownership. The
latter would involve a juridical situation - disregard of the personality of this
individual - while the former would constitute a fact, extremely deplorable or limiting
perhaps, but not necessarily, in itself, annulling the juridical personality of the
human being who suffers it.
15.
If we maintained that forced disappearance, which is an extreme form of
illegal deprivation of liberty, entails disregard of the juridical personality and,
consequently, violation of Article 3 of the Convention, we would have to reach the
same conclusion in the case of arbitrary detention or of absolute, or even relative,
solitary confinement. Further still, in such cases, and evidently in that of forced
disappearance, we would have to conclude that the subject is also deprived of all the
rights that he is unable to exercise due to the factual impediment that
disappearance, solitary confinement or detention imposes on him: the right or
freedom to circulate, expression, meeting, association, property, work, education
and so on. It is obvious that such a conclusion would be excessive from the juridical
perspective, which is the one that governs these observations.
16.
Finally, the judgment points out that Article II of the Inter-American
Convention on Forced Disappearance of Persons, which formulates a characterization
of this on which the national criminal figure can be constructed, alludes to the
violation of some rights - and in this sense, that description is related to the fifth
paragraph of the preamble of the Convention, which refers to the violation of many
essential rights of the human being - which do not include the recognition of juridical
personality. However, the rights to liberty, to information about the disappeared
person, to the recognition of the capture and the exercise of legal remedies and
procedural guarantees are to be found in the above-mentioned Article II.