Inter-American Court of Human Rights judgment of 15 February 2017 in Vasquez Durand et af. V. Ecuador (Series C, no. 332).
The applicant was assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).
Subsequently, the Inter-American Commission on Human Rights referred the applicant's complaint to the Inter-American Court of Human Rights (San Jose, Costa Rica). The complaint was then communicated to Ecuador.
The case successfully examined a complaint about enforced disappearance during an international armed conflict.
Enforced disappearance during an international armed conflict.
THE CIRCUMSTANCES OF THE CASE
The international armed conflict between Ecuador and Peru, known as the War near the Senepa River, or the Alto Senepa conflict, began in January 1995. Jorge Vazquez Durand, a Peruvian citizen who sold traditional handicrafts in both countries, disappeared on January 30, 1995, after telling his wife by telephone that he was going to go to the Equator again to transport his goods from that country to Peru. This was the last conversation with Vasquez Durand. Immigration documents indicated that Vazquez Durand left Ecuador for Peru on January 30, 1995, and there are no documents to show that he returned to Ecuador on the same day. However, according to information received by his wife, he returned to Ecuador and was taken into custody by officials of the Ecuadorian intelligence agency. In addition, another Peruvian citizen who was also taken into custody by State officials during the armed conflict said that he saw Vasquez Duranda in "very bad" condition at the Teniente Ortiz military prison at least until June 1995. Despite attempts by members of the Vasquez Duranda family to find him, his whereabouts remained unknown.
In May 2007, the Ecuadorian authorities established a Truth Commission to investigate human rights violations committed since 1984. The case of Vasquez Duranda was included in the Commission's final report issued in June 2010, which indicated that he was a victim of torture, enforced disappearance and arbitrary deprivation of liberty. The criminal case initiated in Ecuador in 2010 remained at an initial stage at the date of the decision of the Inter-American Court of Human Rights (hereinafter - the Inter-American Court).
QUESTIONS OF LAW
(a) Articles 7 (right to personal liberty), 5 (1) and 5 (2) (right to humane treatment), 4 (1) (right to life) and 3 (right to legal personality) of the American Convention on Human Rights ( hereinafter - ACHR) in conjunction with its Articles 1 (1) and I (a) of the Inter-American Convention on Forced Disappearance of Persons. Due to the disappearance of Vasquez Durand in the course of an international armed conflict, the Inter-American Court has found it useful to interpret the scope of obligations under the ACHR, taking into account the relevant provisions of international humanitarian law. In particular, the Court emphasized that international humanitarian law obliged the Ecuadorian authorities to protect civilians from the other side of the conflict taking place anywhere in its territory.
In accordance with the consistent case-law of the Inter-American Court of Justice, enforced disappearance is a complex and complex violation of various human rights, with three overlapping elements: (a) deprivation of liberty, (b) direct interference or connivance by state agents, and (c) refusal to recognize detention under guard and clarify the fate or whereabouts of the person concerned. The Inter-American Court noted that, while the Geneva Conventions and Additional Protocol I do not explicitly prohibit enforced disappearance, such a prohibition is considered a rule of customary international humanitarian law.
The Inter-American Court recalled that any detention, regardless of its duration or purpose, must be duly recorded in order to protect against any unlawful or arbitrary interference with physical liberty. In addition, in international armed conflicts, States are under an obligation to establish “an official information bureau charged with collecting and transmitting information on protected persons in [their] power”.
To determine whether these three elements were present in the present case, the Inter-American Court turned to circumstantial evidence and referred to the findings of Ecuador's own Truth Commission. The Inter-American Court found that Vasquez Durand re-entered Ecuador on 30 January 1995, where he was taken into custody by the Ecuadorian special services. The Inter-American Court considered that the lack of custody documents and immigration records did not preclude this conclusion, which was consistent with the testimony and information collected by his family. The evasion of registration of the detention of Vasquez Duranda, despite clear commitments in this regard, showed an intention to cover it up. In addition, as a Peruvian citizen and a civilian detained by another party to the conflict, Vasquez Durand was a protected person from the point of view of international humanitarian law. As a result, the Inter-American Court ruled that Vasquez Durand was and remains a person who had been forcibly disappeared since January 30, 1995. Thus, Ecuador was responsible for violations of his rights to personal liberty, human treatment, life and recognition of legal capacity.
RESOLUTION
The case violated the ACHR requirements (adopted unanimously).
(b) Articles 8 (1) (right to a fair trial) and 25 (1) (right to a remedy) of the ACHR in conjunction with its Article 1 (1) and Article I (b) of the Inter-American Convention on Forced Disappearance of Persons. The Inter-American Court found that Ecuador had violated its obligation to initiate an investigation into the enforced disappearance of Vazquez Durand on its own initiative, since he only started a criminal investigation in 2010, despite the fact that a number of competent authorities were notified of the victim's enforced disappearance in 1995. The Inter-American Court also ruled that the criminal investigation, which began in 2010, was not carried out within a reasonable time, as it was still at a very early stage seven years later. Finally, the Inter-American Court concluded that the state did not carry out a serious search for Vasquez Durand or his remains, as a mere check of official registers or written documents was not sufficient.
RESOLUTION
The case violated the ACHR requirements (adopted unanimously).
(c) Compensation. The Inter-American Court found that the order itself constituted a form of reparation, and ordered the state to continue and conduct a proper investigation into the enforced disappearance of Vasquez Durand in a timely manner and in good faith, (ii) conduct a thorough and systematic search for the victim's whereabouts, (iii) publish the order and its official summary, (iv) pay an amount to reimburse the costs of psychological or psychiatric treatment of relatives; and (v) pay compensation for material and non-pecuniary damage, as well as legal costs and expenses.