25
persons, even in states of emergency or suspension of individual guarantees.” The Commission notes
that although the facts of the case at hand took place prior to Peru’s ratification of this Convention, given
the permanent or continuous nature of the crime of forced disappearance, its effects remain until the fate
or whereabouts of the victim is determined; consequently, the State is in a situation of ongoing violation of
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its international obligations.
98.
The Commission has adopted a comprehensive approach to this breach of human rights,
taking it to be a continued violation. That approach enables it to analyze and establish the total scope of
the State’s responsibility. It must be noted that until the fate or whereabouts of the victim or of his mortal
remains is determined, his family and society in general endure the experience of a forced disappearance
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with all its consequences.
99.
In forced disappearance cases, the Inter-American Court has ruled that it is not
necessary to conduct a detailed analysis of the arrest in light of each of the guarantees established in
Article 7 of the American Convention. In the view of the Inter-American Court, when it has been
established than an arrest was a prior step before a disappearance, it is unnecessary determine whether
the victim was informed of the reasons for his or her arrest, whether it took place in violation of the causes
and conditions established in the legislation in force at the time of the facts, or whether the arrest was
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unreasonable, unpredictable, or disproportionate.
This is because the analysis of an alleged forced
disappearance must take into account the fact that an individual’s arrest is only the start of a complex
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violation that persists until the fate and whereabouts of the victim are revealed.
100.
In the case at hand, it has been shown that on April 28, 1991, Jeremías Osorio Rivera
was deprived of his liberty by members of a Peruvian Army patrol. The IACHR has concluded that this
arrest was the first step in the victim’s forced disappearance; it is therefore unnecessary to analyze if the
circumstances surrounding his arrest were in line with each of the conditions set out in Article 7 of the
American Convention. On the contrary, the fact that Jeremías Osorio was forcibly disappeared after his
arrest allows the conclusion that it was illegal, arbitrary, and in breach of the guarantees set out in that
provision of the Convention.
101.
Regarding the right to humane treatment, the Inter-American Court has acknowledged
that “a person who is unlawfully detained is in an exacerbated situation of vulnerability creating a real risk
that his other rights, such as the right to humane treatment and to be treated with dignity, will be
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violated.”
In addition, the Inter-American Court has said that forced disappearance constitutes a
violation of that right in that “prolonged isolation and deprivation of communication are in themselves cruel
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and inhuman treatment [...] in violation of paragraphs 1 and 2 of that article.” Specifically, the Court has
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IACHR, Application to the Inter-American Court of Human Rights in the case of Rainer Ibsen Cárdenas and José Luís
Ibsen
Peña
v.
the
Republic
of
Bolivia,
Case
12.529,
May
12,
2009,
para.
15,
available
at
www.cidh.oas.org/demandas/demandasESP2009.htm.
117
IACHR, Application to the Inter-American Court of Human Rights in the case of Narciso González Medina and others v.
the Dominican Republic, Case 11.324, May 2, 2010, paras. 106 and 107; and Application to the Inter-American Court of Human
Rights in the case of Gregoria Herminia Contreras and others v. the Republic of El Salvador, Cases 12.494, 12.517, and 12.518,
June 28, 2010, paras. 134 and 135. Documents available at www.cidh.oas.org/demandas/demandasESP2010.htm.
118
I/A Court H. R., Case of La Cantuta v. Peru, Judgment of November 29, 2006, Series C No. 162, para. 109.
119
I/A Court H. R. Case of Ticona Estrada et al. v. Bolivia, Preliminary Objections, Merits, Reparations, and Costs,
Judgment of November 27, 2008, Series C No. 191, para. 56.
120
I/A Court H. R., Case of Bámaca Velásquez v. Guatemala, Judgment of November 25, 2000, Series C No. 70, para.
90.
121
I/A Court H. R., Case of Velásquez Rodríguez v. Honduras, Judgment of July 29, 1988, Series C No. 4, paras. 156 and
187; Case of the Miguel Castro Castro Prison, Merits, Reparations, and Costs, Judgment of November 25, 2006, Series C No. 160,
para. 323; Case of Ticona Estrada et al. v. Bolivia, Merits, Reparations, and Costs, Judgment of November 27, 2008, Series C No.
191, para. 58.