Author's Note: This case was the first contentious
case heard by the Court. It documents a record of numerous disappearances
in Honduras from 1981 to 1984. Certain citations to authority
and the names of the people testifying have been omitted from
a number of paragraphs.
.....You might start by reading
paragraph 45 to appreciate both the courage and the difficulty
associated with attempts by an international court to enforce
the rule of law during the infamous era of the "desaparecidos"
[people who were disappeared without a trace]. This case also
illustrates how a major human rights case evolves in the following
terms: tactical strategies of the parties; the types of outside
assistance available (such bar association and NGO legal briefs);
some of the difficulties associated with obtaining proof; the
relaxed rules of evidence applied by an international human rights
court (e.g., press clippings); and the role that an international
court can play when access to domestic remedies is unassuring.
.....The paragraph numbers are those
of the court. Underlining has been added to certain words and
[Court's Opinion] 1. The Inter-American
Commission on Human Rights (hereinafter "the Commission")
submitted the instant case to the Inter-American Court of Human
Rights (hereinafter the "Court") on April 24, 1986.
It originated in a petition against the State of Honduras (hereinafter
"Honduras" or "the Government"), which the
Secretariat of the Commission received on October 7, 1981.
.....2. In submitting the
case, the Commission invoked Articles 50 and 51 of the American
Convention on Human Rights (hereinafter "the Convention"
or "the American Convention") and requested that the
Court determine whether the State in question had violated Articles
4 (Right to Life), 5 (Right to Humane Treatment) and 7 (Right
to Personal Liberty ) of the Convention in the case of Angel
Manfredo Velásquez Rodríguez (also known as Manfredo
Velásquez ). In addition, the Commission asked the Court
to rule that "the consequences of the situation that constituted
the breach of such right or freedom be remedied and that fair
compensation be paid to the injured party or parties."
.....3. According to the
petition filed with the Commission, and the supplementary information
received subsequently, Manfredo Velasquez, a student at the National
Autonomous University of Honduras, "was violently detained
without a warrant for his arrest by members of the National Office
of Investigations (DNI) and G-2 of the Armed Forces of Honduras.
"The detention took place in Tegucigalpa on the afternoon
of September 12, 1981. According to the petitioners, several
eyewitnesses reported that Manfredo Velasquez and others were
detained and taken to the cells of Public Security Forces Station
No. 2 located in the Barrio E1 Manchen of Tegucigalpa, where
he was "accused of alleged political crimes and subjected
to harsh interrogation and cruel torture." The petition
added that on September 17, 1981, Manfredo Velásquez was
moved to the First Infantry Battalion, where the interrogation
continued, but that the police and security forces denied that
he had been detained.
.....4. After transmitting
the relevant parts of the petition to the Government, the Commission,
on various occasions, requested information on the matter. Since
the Commission received no reply, it applied Article 42 ... of
its Regulations and presumed "as true the allegations contained
in the communication of October 7, 1981, concerning the detention
and disappearance of Angel Manfredo Velásquez Rodríguez
in the Republic of Honduras" and pointed out to the Government
"that such acts are most serious violations of the right
to life (Art. 4) and the right to personal liberty (Art. 7) of
the American Convention" (Resolution 30/83 of October 4,
.....5. On November 18, 1983,
the Government requested the reconsideration of Resolution 30/83
on the grounds that domestic remedies had not been exhausted,
that the National Office of Investigations had no knowledge of
the whereabouts of Manfredo Velásquez, that the Government
was making every effort to find him, and that there were rumors
that Manfredo Velásquez was "with Salvadoran guerrilla
.....9. On April 7, 1986,
the Government provided information about the outcome of the
proceeding brought in the First Criminal Court against those
persons supposedly responsible for the disappearance of Manfredo
Velasquez and others. That Court dismissed the complaints "except
as they applied to General Gustavo Alvarez Martínez, because
he had left the country and had not given testimony." This
decision was later affirmed by the First Court Of Appeals.
.....10. By Resolution 22/86
of April 18, 1986, the Commission deemed the new information
presented by the Government insufficient to warrant reconsideration
of Resolution 30/83 and found, to the contrary, that "all
evidence shows that Angel Manfredo Velásquez Rodríguez
is still missing and that the Government of Honduras ... has
not offered convincing proof that would allow the Commission
to determine that the allegations are not true." In that
same Resolution, the Commission confirmed Resolution 30/83 and
referred the matter to the Court.
.....11. The Court has jurisdiction
to hear the instant case. Honduras ratified the Convention on
September 8, 1977 and recognized the contentious jurisdiction
of the Court, as set out in Article 62 of the Convention, on
September 9, 1981. The case was submitted to the Court by the
[international Human Rights] Commission pursuant to Article 61
of the Convention and Article 50(1) and 50(2) of the Regulations
of the Commission. ...
.....16. [After extended
deadlines provided to Honduras] ... the Government objected to
the admissibility of the application filed by the Commission.
.....19. By note of March
13, 1987, the Government informed the Court that because ...
these are the first contentious cases submitted to the Court,
it is especially important to ensure strict compliance with and
the correct application of the procedural rules of the Court.
[The Court ultimately overruled the various objections to the
proceedings by Honduras.] ...
.....24. On that same date,
the Court adopted the following decision: ...
...........[4.] To instruct the
President to arrange with the respective authorities for the
necessary guarantees of immunity and participation of the Agents
and other representatives of the parties, witnesses and experts,
and, if necessary, the delegates of the Court. ...
.....26. On August 27, 1987,
the Government filed its Counter-Memorial [defendant's opposing
brief] and documentary evidence. In its prayer, the Government
asked the Court to dismiss "the suit against the State of
Honduras on the grounds that it does not find the allegations
to be true and that the domestic remedies of the State of Honduras
have not yet been exhausted." ...
.....28. The Court held hearings
on the merits and heard the final arguments of the parties from
September 30 to October 7, 1987. ...
.....There appeared before the Court:
............c) Witnesses presented
by the Commission to testify as to "whether between the
years 1981 and 1984 (the period in which Manfredo Velásquez
disappeared) there were numerous cases of persons who were kidnapped
and who then disappeared, and whether these actions were imputable
to the Armed Forces of Honduras and enjoyed the acquiescence
of the Government of Honduras:" [and] ...
............d) Witnesses presented
by the Commission to testify as to "whether between the
years 1981 and 1984 effective domestic remedies existed in Honduras
to protect those persons who were kidnapped and who then disappeared
in actions imputable to the Armed Forces of Honduras:" ...
.....29. After having heard
the witnesses, the Court directed the submission of additional
evidence to assist it in its deliberations. Its Order of October
7, 1987 reads as follows:
..... "A. Documentary Evidence
.............1. To request the Government
of Honduras to provide the organizational chart showing the ................structure of Battalion
316 and its position within the Armed Forces of Honduras.
.............1. To call as witnesses,
Marco Tulio Regalado and Alexander Hernández, members
of the ................Armed Forces
of Honduras. ..."
........C. [Jose Isaías Vilorio]
.....31. In response to that
Order, on December 14, 1987 the Government: a) with respect to
the organizational structure of Battalion 316, requested that
the Court receive the testimony of its Commandant in a closed
hearing "because of strict security reasons of the State
of Honduras"; b) requested that the Court hear the testimony
of Alexander Hernández and Marco Tulio Regalado "in
the Republic of Honduras, in a manner to be decided by the Court
and in a closed hearing to be set at an opportune time ... because
of security reasons and because both persons are on active duty
in the Armed Forces of Honduras. ...
.....32. By note of December
24, 1987, the Commission objected to hearing the testimony
of members of the Honduran military in closed session. This
position was reiterated by note of January 11, 1988. ...
.....33. On the latter date,
the Court decided to receive the testimony of the members of
the Honduran military at a closed hearing in the presence of
.....34. Pursuant to its
Order of October 7, 1987 and its decision of January 11, 1988,
the Court held a closed hearing on January 20, 1988, which both
parties attended, at which it received the testimony of persons
who identified themselves as Lt. Col. Alexander Hernández
and Lt. Marco Tulio Regalado Hernández. The Court also
heard the testimony of Col. Roberto Núñez Montes,
Head of the Intelligence Services of Honduras.
.....35. On January 22, 1988,
the Government submitted a brief prepared by the Honduran Bar
Association on the legal remedies available in cases of disappeared
persons. The Court had asked for this document in response to
the Government's request of August 26, 1987. ...
.....38. The following non-governmental
organizations submitted briefs as amici curiae [friends of the
court possessing expertise in such matters]: Amnesty International,
Association of the Bar of the City of New York, Lawyers Committee
for Human Rights and Minnesota Lawyers International Human Rights
.....39. By note of November
4, 1987, addressed to the President of the Court, the Commission
asked the Court to take provisional measures [to protect potential
witnesses for the plaintiff] under Article 63(2) of the Convention
in view of the threats against the witnesses Milton Jiménez
Puerto and Ramón Custodio López. Upon forwarding
this information to the Government of Honduras, the [Court's]
President stated that he "does not have enough proof to
ascertain which persons or entities might be responsible for
the threats, but he strongly wishes to request that the Government
of Honduras take all measures necessary to guarantee the safety
of the lives and property of Milton Jiménez and Ramón
Custodio and the property of the Committee for the Defense of
Human Rights in Honduras (CODEH )...." The President also
stated that he was prepared to consult with the Permanent Commission
of the Court and, if necessary, to convoke the Court for an emergency
meeting "for taking the appropriate measures, if that abnormal
situation continues." By communications of November 11 and
18, 1987, the Agent of the Government informed the Court that
the Honduran government would guarantee Ramón Custodio
and Milton Jiménez "the respect of their physical
and moral integrity ... and the faithful compliance with the
.....40. By note of January
11, 1988, the Commission informed the Court of the death of Jose
Isaías Vilorio [see ¶29c above], which occurred on
January 5, 1988 at 7:15 a.m. The Court had summoned him to appear
as a witness on January 18, 1988. He was killed "on a public
thoroughfare in Colonia San Miguel, Comayaguela, Tegucigalpa,
by a group of armed men who placed the insignia of a Honduran
guerrilla movement known as Cinchonero on his body and fled in
a vehicle at high speed."
.....41. On January 15, 1988,
the Court was informed of the assassinations of Moisés
Landaverde and Miguel Angel Pavón which had occurred the
previous evening in San Pedro Sula. Mr. Pavón had testified
before the Court on September 30, 1987 as a witness in this case.
Also on January 15, the Court adopted the following provisional
measures under Article 63 (2) of the Convention:
..........."1. That the
Government of Honduras adopt, without delay, such measures as
are necessary to prevent further infringements on the basic rights
of those who have appeared or have been summoned to do so before
this Court in the "Velásquez Rodríguez,"
"Fairén Garbi and Solís Corrales" and
"Godínez Cruz" cases, in strict compliance with
the obligation of respect for and observance of human rights,
under the terms of Article 1(1) of the Convention [American Convention
on Human Rights].
.............2. That the Government
of Honduras also employ all means within its power to investigate
these reprehensible crimes, to identify the perpetrators and
to impose the punishment provided for by the domestic law of
.....42. After it had
adopted the above Order of January 15, the Court received a request
from the Commission, dated the same day, that the Court take
the necessary measures to protect the integrity and security
of those persons who had appeared or would appear before the
.....43. On January 18, 1988,
the Commission asked the Court to adopt the following complementary
...........4. That the Government
of Honduras inform the Court, within the same period, on the
criminal.investigations of threats
against Ramón Custodio and Milton Jiménez, who
are witnesses in this.case.
...........5. That it inform the
Court whether it has ordered police protection to ensure the
personal integrity.of the witnesses
who have testified and the protection of the property of [the
human rights.NGO] CODEH. ...
.....45. ... [T]he Court
unanimously decided, by Order of January 19, 1988, on the following
additional provisional measures:
..........."1. That the
Government of Honduras, within a period of two weeks, inform
this Court on the following points:
.................a. the measures
that have been adopted or will be adopted to protect the physical
integrity of, and to avoid irreparable harm to, those witnesses
who have testified or have been summoned to do so in these cases.
..................b. the judicial
investigations that have been or will be undertaken with respect
to threats against the aforementioned individuals.
..................c. the investigations
of the assassinations, including forensic reports, and the actions
that are proposed to be taken within the judicial system of Honduras
to punish those responsible.
..............2. That the Government
of Honduras adopt concrete measures to make clear that the appearance
of an individual before the Inter-American Commission or Court
of Human Rights, under conditions authorized by the American
Convention and by the rules of procedure of both bodies, is a
right enjoyed by every individual and is recognized as such by
Honduras as a party to the Convention. ..."
.....71. ... [T]he Commission
argued that the practice of disappearances made exhaustion of
domestic remedies impossible because such remedies were ineffective
in correcting abuses imputed to the authorities or in causing
kidnapped persons to reappear. ...
.....73. The Commission asserted
that, because of the structure of the international system for
the protection of human rights, the Government bears the burden
of proof with respect to the exhaustion of domestic remedies.
The [Government's] objection of failure to exhaust presupposes
the existence of an effective remedy. It stated that a criminal
complaint is not an effective means to find a disappeared person,
but only serves to establish individual responsibility.
.....74. The record before
the Court shows that the following remedies were pursued
on behalf of Manfredo Velásquez:
..................i. Brought by
Zenaida Velásquez against the Public Security Forces on
September 17, 1981. ....................No
..................ii. Brought by
Zenaida Velásquez on February 6, 1982. No result.
..................iii. Brought by
various relatives of disappeared persons on behalf of Manfredo
Velásquez and .....................
others on July 4, 1983. Denied on September 11, 1984.
..............b. Criminal Complaints
...................i. Brought by
the father and sister of Manfredo Velásquez before the
First Criminal Court of.Tegucigalpa on November 9, 1982. No result.
...................ii. Brought by
Gertrudis Lanza González, joined by Zenaida Velásquez,
before the First Criminal Court of Tegucigalpa against various
members of the Armed Forces on April 5, 1984. The court dismissed
this proceeding and the First Court of Appeals affirmed on January
16, 1986, although it left open the complaint with regard to
General Gustavo Alvarez Martínez, who was declared a defendant
in absence." ...
.....76. The record contains
testimony of members of the Legislative Assembly of Honduras,
Honduran lawyers, persons who were at one time disappeared, and
relatives of disappeared persons, which purports to show that
in the period in which the events took place, the legal remedies
in Honduras were ineffective in obtaining the liberty of
victims of a practice of enforced or involuntary disappearances
(hereinafter "disappearance" or "disappearances"),
ordered or tolerated by the Government. The record also contains
dozens of newspaper clippings which allude to the same practice.
According to that evidence, from 1981 to 1984 more than one hundred
persons were illegally detained, many of whom never reappeared,
and, in general, the legal remedies which the Government claimed
were available to the victims were ineffective.
.....80. The testimony and
other evidence received and not refuted leads to the conclusion
that, during the period under consideration, although there may
have been legal remedies in Honduras that theoretically allowed
a person detained by the authorities to be found, those remedies
were ineffective in cases of disappearances because the imprisonment
was clandestine; formal requirements made them inapplicable in
practice; the authorities against whom they were brought simply
ignored them, or because attorneys and judges were threatened
and intimidated by those authorities. ...
.....82. The Commission presented
testimony and documentary evidence to show that there were many
kidnappings and disappearances in Honduras from 1981 to 1984
and that those acts were attributable to the Armed Forces of
Honduras (hereinafter "Armed Forces"), which was able
to rely at least on the tolerance of the Government. Three officers
of the Armed Forces testified on this subject at the request
of the Court.
.....83. Various witnesses
testified that they were kidnapped, imprisoned in clandestine
jails and tortured by members of the Armed Forces....
.....84. Inés Consuelo
Murillo testified that she was secretly held for approximately
three months. According to her testimony, she and José
Gonzalo Flores Trejo, whom she knew casually, were captured on
March 13, 1983 by men who got out of a car, shouted that they
were from Immigration and hit her with their weapons. Behind
them was another car which assisted in the capture. She said
she was blindfolded, bound, and driven presumably to San Pedro
Sula, where she was taken to a secret detention center. There
she was tied up, beaten, kept nude most of the time, not fed
for many days, and subjected to electrical shocks, hanging, attempts
to asphyxiate her, threats of burning her eyes, threats with
weapons, burns on the legs, punctures of the skin with needles,
drugs and sexual abuse. She admitted carrying false identification
when detained, but ten days later she gave them her real name.
She stated that thirty-six days after her detention she was moved
to a place near Tegucigalpa, where she saw military officers
( one of whom was Second Lt. Marco Tulio Regalado Hernández
), papers with an Army letterhead, and Armed Forces graduation
rings. This witness added that she was finally turned over to
the police and was brought before a court. She was accused of
some twenty crimes, but her attorney was not allowed to present
evidence and there was no trial (testimony of Inés Consuelo
[The following paragraphs contained testimony of a number
of witnesses about the gruesome details regarding their respective
detentions by captors wearing military insignia.]
.....91. A Honduran attorney,
who stated that he defended political prisoners, testified that
Honduran security forces detained him without due process in
1982. He was held for ten days in a clandestine jail, without
charges, and was beaten and tortured before he was brought before
.....92. The Government affirmed
that the witness was charged with the crimes of threatening national
security and possession of arms that only the Armed Forces were
authorized to carry and, therefore, had a personal interest in
discrediting Honduras with his testimony.
.....93. Another lawyer,
who also said that he defended political detainees and who testified
on Honduran law, stated that personnel of the Department of Special
Investigations detained him in broad daylight in Tegucigalpa
on June 1, 1982, blindfolded him, took him to a place he was
unable to recognize and kept him without food or water for four
days. He was beaten and insulted. He said that he could see through
the blindfold that he was in a military installation.
.....94. The Government claimed
that this witness made several false statements regarding the
law in force in Honduras and that his testimony "lacks truth
or force because it is not impartial and his interest is to discredit
the State of Honduras."
.....95. The Court received
testimony which indicated that somewhere between 112 and 130
individuals were [thus] disappeared from 1981 to 1984. A former
member of the Armed Forces testified that, according to a list
in the files of Battalion 316, the number might be 140 or 150.
.....96. The Court heard
testimony from the President of the Committee for the Defense
of Human Rights in Honduras regarding the existence of a unit
within the Armed Forces which carried out disappearances. According
to his testimony, in 1980 there was a group ... called Battalion
316, a special operations group, with separate units trained
in surveillance, kidnapping, execution, telephone tapping, etc.
The existence of this group had always been denied until it was
mentioned in a communique of the Armed Forces in September 1986.
.....98. The current Director
of Honduran Intelligence testified that he learned from the files
of his department that in 1984 an intelligence battalion called
316 was created, the purpose of which was to provide combat intelligence
to the 101st, 105th and 110th Brigades. He added that this battalion
initially functioned as a training unit, until the creation of
the Intelligence School, to which all its training functions
were gradually transferred, and that the Battalion was finally
disbanded in September 1987. ...
.....99. According to testimony
on the modus operandi of the practice of disappearances, the
kidnappers followed a pattern: they used automobiles with tinted
glass (which requires a special permit from the Traffic Division),
without license plates or with false plates, and sometimes used
special disguises, such as wigs, false mustaches, masks, etc.
The kidnappings were selective. The victims were first placed
under surveillance, then the kidnapping was planned. Microbuses
or vans were used. Some victims were taken from their homes;
others were picked up in public streets. On one occasion, when
a patrol car intervened, the kidnappers identified themselves
as members of a special group of the Armed Forces and were permitted
to leave with the victim. ...
.....102. The current Director
of Intelligence of the Armed Forces testified that intelligence
units do not carry out detentions because they "get burned"
(are discovered) and do not use pseudonyms or automobiles without
license plates. ...
.....103. The former member
of the Armed Forces confirmed the existence of secret jails and
of specially chosen places for the burial of those executed.
He also related that there was a torture group and an interrogation
group in his unit, and that he belonged to the latter. The torture
group used electric shock, the water barrel and the "capucha."
They kept the victims nude, without food, and threw cold water
on them. He added that those selected for execution were handed
over to a group of former prisoners, released from jail for carrying
out executions, who used firearms at first and then knives and
.....104. The current Director
of Intelligence denied that the Armed Forces had secret jails,
stating that it was not its modus operandi. He claimed that it
was subversive elements who do have such jails, which they
call "the peoples' prisons." He added that the function
of an intelligence service is not to eliminate or disappear people,
but rather to obtain and process information to allow the highest
levels of government to make informed decisions.
.....105. A Honduran officer,
called as a witness by the Court, testified that the use of violence
or psychological means to force a detainee to give information
.....106. The Commission
submitted many clippings from the Honduran press from 1981
to 1984 which contain information on at least 64 disappearances,
which were apparently carried out against ideological or political
opponents or trade union members. Six of those individuals, after
their release, complained of torture and other cruel, inhuman
and degrading treatment. These clippings mention secret cemeteries
where 17 bodies had been found.
.....107. According to the
testimony of his sister, eyewitnesses to the kidnapping of Manfredo
Velásquez told her that he was detained on September 12,
1981, between 4:30 and 5:00 p.m., in a parking lot in downtown
Tegucigalpa by seven heavily-armed men dressed in civilian clothes,
who used a white Ford without license plates.
.....108. This witness informed
the Court that Col. Leonidas Torres Arias, who had been head
of Honduran military intelligence, announced in a press conference
in Mexico City that Manfredo Velásquez was kidnapped by
a special squadron commanded by Capt. Alexander Hernández,
who was carrying out the direct orders of General Gustavo Alvarez
.....109. Lt. Col. Hernández
testified that he never received any order to detain Manfredo
Velásquez and had never worked in police operations.
.....110. The Government
objected, under Article 37 of the Rules of Procedure, to
the testimony of Zenaida Velásquez because, as
sister of the victim, she was a party interested in
the outcome of the case.
.....111. The Court unanimously
rejected the objection because it considered the fact that the
witness was the victim's sister to be insufficient to disqualify
her. The Court reserved the right to consider her testimony.
.....112. The Government
asserted that her testimony was irrelevant because it did
not refer to the case before the Court and that what she related
about the kidnapping of her brother was not her personal knowledge
but rather hearsay.
.....113. The former member
of the Armed Forces who claimed to have belonged to the group
that carried out kidnappings told the Court that, although he
did not take part in the kidnapping of Manfredo Velásquez,
Lt. Flores Murillo had told him what had happened. According
to this testimony, Manfredo Velásquez was kidnapped in
downtown Tegucigalpa in an operation in which Sgt. José
Isaías Vilorio, men using the pseudonyms Ezequiel and
Titanio, and Lt. Flores Murillo himself, took part. The Lieutenant
told him that during the struggle Ezequiel's gun went off and
wounded Manfredo in the leg. They took the victim to INDUMIL
(Military Industries) where they tortured him. They then turned
him over to those in charge of carrying out executions who, at
the orders of General Alvarez, Chief of the Armed Forces, took
him out of Tegucigalpa and killed him with a knife and machete.
They dismembered his body and buried the remains in different
.....119. The testimony
and documentary evidence, corroborated by press clippings,
presented by the Commission, tend to show:
............."a. That there
existed in Honduras from 1981 to 1984 a systematic and selective
practice of disappearances carried out with the assistance or
tolerance of the government;
..............b. That Manfredo Velásquez
was a victim of that practice and was kidnapped and presumably
tortured, executed and clandestinely buried by agents of the
Armed Forces of Honduras, and
..............c. That in the period
in which those acts occurred, the legal remedies available in
Honduras were not appropriate or effective to guarantee his rights
to life, liberty and personal integrity."
.....120. The Government,
in turn, submitted documents and based its argument on the testimony
of three members of the Honduran Armed Forces, two of whom were
summoned by the Court because they had been identified in the
proceedings as directly involved in the general practice referred
to and in the disappearance of Manfredo Velásquez. This
evidence may be summarized as follows:
............. "a. The testimony
purports to explain the organization and functioning of the security
forces accused of carrying out the specific acts and denies any
knowledge of or personal involvement in the acts of the officers
................b. documents purport
to show that no civil suit had been brought to establish a presumption
of the death of Manfredo Velásquez, and
................c. Other documents
purport to prove that the Supreme Court of Honduras received
and acted upon some writs of HABEAS corpus and that some of those
writs resulted in the release of the persons on whose behalf
they were brought." ...
.....124. The Commission's
argument relies upon the proposition that the policy of disappearances,
supported or tolerated by the Government, is designed to conceal
and destroy evidence of disappearances. When the existence of
such a policy or practice has been shown, the disappearance of
a particular individual may be proved through circumstantial
or indirect evidence or by logical inference. Otherwise, it would
be impossible to prove that an individual has been disappeared.
.....127. The Court must
determine what the standards of proof should be in the instant
case. Neither the Convention, the Statute of the Court nor its
Rules of Procedure speak to this matter. Nevertheless, international
jurisprudence has recognized the power of the courts to weigh
the evidence freely, although it has always avoided a rigid rule
regarding the amount of proof necessary to support the judgment
( Cfr. Corfu Channel, Merits, Judgment, I.C.J. Reports
1949 [text §6.3]; Military
and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America), Merits, Judgment, I.C.J. Reports
1986, paras. 29-30 and 59-60) [text §10.2] .
.....128. The standards of
proof are less formal in an international legal proceeding than
in a domestic one. The latter recognize different burdens of
proof, depending upon the nature, character and seriousness of
.....129. The Court cannot
ignore the special seriousness of finding that a State Party
to the Convention has carried out or has tolerated a practice
of disappearances in its territory. This requires the Court to
apply a standard of proof which considers the seriousness of
the charge and which, notwithstanding what has already been said,
is capable of establishing the truth of the allegations in a
convincing manner. ...
.....132. Since this Court
is an international tribunal, it has its own specialized procedures.
All the elements of domestic legal procedures are therefore not
.....133. The above principle
is generally valid in international proceedings, but is particularly
applicable in human rights cases.
.....134. The international
protection of human rights should not be confused with criminal
justice. States do not appear before the Court as defendants
in a criminal action. The objective of international human rights
law is not to punish those individuals who are guilty of violations,
but rather to protect the victims and to provide for the reparation
of damages resulting from the acts of the States responsible.
.....135. In contrast to
domestic criminal law, in proceedings to determine human rights
violations the State cannot rely on the defense that the complainant
has failed to present evidence when it cannot be obtained without
the State's cooperation.
.....136. The State controls
the means to verify acts occurring within its territory. Although
the Commission has investigatory powers, it cannot exercise them
within a State's jurisdiction unless it has the cooperation of
.....137. Since the Government
only offered some documentary evidence in support of its preliminary
objections [claimed failure of plaintiffs to exhaust domestic
remedies before proceeding in an international court], but none
on the merits, the Court must reach its decision without the
valuable assistance of a more active participation by Honduras,
which might otherwise have resulted in a more adequate presentation
of its case.
......138. The manner in
which the Government conducted its defense would have sufficed
to prove many of the Commission's allegations by virtue of the
principle that the silence of the accused or elusive or ambiguous
answers on its part may be interpreted as an acknowledgment of
the truth of the allegations, so long as the contrary is not
indicated by the record or is not compelled as a matter of law.
This result would not hold under criminal law, which does not
apply in the instant case (supra 134 and 135). The Court tried
to compensate for this procedural principle by admitting all
the evidence offered, even if it was untimely, and by ordering
the presentation of additional evidence. This was done, of course,
without prejudice to its discretion to consider the silence or
inaction of Honduras or to its duty to evaluate the evidence
as a whole.
.....139. In its own proceedings
and without prejudice to its having considered other elements
of proof, the Commission invoked Article 42 of its Regulations,
which reads as follows:
reported in the petition whose pertinent parts have been transmitted
.............government of the State
in reference shall be presumed to be true if, during the maximum
.............period set by the Commission
under the provisions of Article 34 paragraph 5, the
.............government has not
provided the pertinent information, as long as other evidence
.............lead to a different
.....140. In the instant
case, the Court accepts the validity of the documents presented
by the Commission and by Honduras, particularly because the parties
did not oppose or object to those documents nor did they question
their authenticity or veracity. ...
.....142. During cross-examination,
the Government's attorneys attempted to show that some witnesses
were not impartial because of ideological reasons, origin or
nationality, family relations, or a desire to discredit Honduras.
They even insinuated that testifying against the State in
these proceedings was disloyal to the nation. Likewise, they
cited criminal records or pending charges to show that some witnesses
were not competent to testify.
.....143. It is true, of
course, that certain factors may clearly influence a witness'
truthfulness. However, the Government did not present any concrete
evidence to show that the witnesses had not told the truth, but
rather limited itself to making general observations regarding
their alleged incompetency or lack of impartiality. This is insufficient
to rebut testimony which is fundamentally consistent with that
of other witnesses. The Court cannot ignore such testimony.
.....144. Moreover, some
of the Government's arguments are unfounded within the context
of human rights law. The insinuation that persons who, for any
reason, resort to the inter-American system for the protection
of human rights are disloyal to their country is unacceptable
and cannot constitute a basis for any penalty or negative consequence.
Human rights are higher values that "are not derived from
the fact that (an individual) is a national of a certain state,
but are based upon attributes of his human personality"
(American Declaration of the Rights and Duties of Man, Whereas
clauses, and American Convention, Preamble).
.....145. Neither is it sustainable
that having a criminal record or charges pending is sufficient
in and of itself to find that a witness is not competent to testify
in Court. As the Court ruled, in its decision of October 6, 1987,
in the instant case.
American Convention on Human Rights, it is impermissible to deny
.............a priori, the possibility
of testifying to facts relevant to a matter before the Court,
.............he has an interest
in that proceeding, because he has been prosecuted or even convicted
.............under internal laws."
.....146. Many of the
press clippings offered by the Commission cannot be considered
as documentary evidence as such. However, many of them contain
public and well-known facts which, as such, do not require proof;
others are of evidentiary value, as has been recognized in international
jurisprudence (Military and Paramilitary Activities in and
against Nicaragua, supra 127, paras. 62-64), insofar as they
textually reproduce public statements, especially those of high-ranking
members of the Armed Forces, of the Government, or even of the
Supreme Court of Honduras, such as some of those made by the
President of the latter. Finally, others are important as a whole
insofar as they corroborate testimony regarding the responsibility
of the Honduran military and police for disappearances. ...
.....148. Based upon the
above, the Court finds that the following facts have been proven
in this proceeding: (1) a practice of disappearances carried
out or tolerated by Honduran officials existed between 1981 and
1984; (2) Manfredo Velásquez disappeared at the hands
of or with the acquiescence of those officials within the framework
of that practice; and (3) the Government of Honduras failed to
guarantee the human rights affected by that practice.
are not new in the history of human rights violations. However,
their systematic and repeated nature and their use not only for
causing certain individuals to disappear, either briefly or permanently,
but also as a means of creating a general state of anguish, insecurity
and fear, is a recent phenomenon. Although this practice exists
virtually worldwide, it has occurred with exceptional intensity
in Latin America in the last few years. ...
.....151. The establishment
of a Working Group on Enforced or Involuntary Disappearances
of the United Nations Commission on Human Rights, by Resolution
20 ( XXXVI ) of February 29, 1980, is a clear demonstration of
general censure and repudiation of the practice of disappearances,
which had already received world attention at the UN General
Assembly (Resolution 33/173 of December 20, 1978), the Economic
and Social Council (Resolution 1979/38 of May 10, 1979) and the
Subcommission for the Prevention of Discrimination and Protection
of Minorities (Resolution 5B ( XXXII) of September 5, 1979).
The reports of the rapporteurs or special envoys of the Commission
on Human Rights show concern that the practice of disappearances
be stopped, the victims reappear and that those responsible be
.....152. Within the inter-American
system, the General Assembly of the Organization of American
States ( OAS ) and the Commission have repeatedly referred to
the practice of disappearances and have urged that disappearances
be investigated and that the practice be stopped.
practice and doctrine have often categorized disappearances as
a crime against humanity, although there is no treaty in
force which is applicable to the States Parties to the Convention
and which uses this terminology. The General Assembly of the
OAS has resolved that it "is an affront to the conscience
of the hemisphere and constitutes a crime against humanity"
and that "this practice is cruel and inhuman, mocks the
rule of law, and undermines those norms which guarantee protection
against arbitrary detention and the right to personal security
.....154. Without question,
the State has the right and duty to guarantee its security. It
is also indisputable that all societies suffer some deficiencies
in their legal orders. However, regardless of the seriousness
of certain actions and the culpability of the perpetrators of
certain crimes, the power of the State is not unlimited, nor
may the State resort to any means to attain its ends. The State
is subject to law and morality. Disrespect for human dignity
cannot serve as the basis for any State action.
.....155. The forced disappearance
of human beings is a multiple and continuous violation of many
rights under the Convention that the States Parties are obligated
to respect and guarantee. The kidnapping of a person is an arbitrary
deprivation of liberty, an infringement of a detainee's right
to be taken without delay before a judge and to invoke the appropriate
procedures to review the legality of the arrest, all in violation
of Article 7 of the Convention which recognizes the right to
personal liberty by providing that:
person has the right to personal liberty and security.
................2. No one shall
be deprived of his physical liberty except for the reasons and
under the ....................conditions
established beforehand by the constitution of the State Party
.....................by a law established
.................3. No one shall
be subject to arbitrary arrest or imprisonment.
.................4. Anyone who is
detained shall be informed of the reasons for his detention and
shall be ....................promptly
notified of the charge or charges against him.
.................5. Any person detained
shall be brought promptly before a judge or other officer authorized
....................by law to exercise
judicial power and shall be entitled to trial within a reasonable
.....................to be.released without prejudice to the continuation
of the proceedings. His release may
.....................be subject to guarantees to assure his appearance
.................6. Anyone who is
deprived of his liberty shall be entitled to recourse to a competent
court, ....................in order
that the court may decide without delay on the lawfulness of
his arrest or
order his release if the arrest or detention is unlawful. In
provide that anyone who believes himself to be threatened with
.....................of his liberty
is entitled to recourse to a competent court in order that it
may decide on
of such threat, this remedy may not be restricted or abolished.
party or another person in his behalf is entitled to seek these
.....156. Moreover, prolonged
isolation and deprivation of communication are in themselves
cruel and inhuman treatment, harmful to the psychological and
moral integrity of the person and a violation of the right of
any detainee to respect for his inherent dignity as a human being.
Such treatment, therefore, violates Article 5 of the Convention,
which recognizes the right to the
integrity of the person by providing that:
person has the right to have his physical, mental, and moral
................2. No one shall
be subjected to torture or to cruel inhuman, or degrading punishment
All persons deprived of their liberty shall be treated with respect
for the ...................inherent
dignity of the human person."
.....In addition, investigations
into the practice of disappearances and the testimony of victims
who have regained their liberty show that those who are disappeared
are often subjected to merciless treatment, including all types
of indignities, torture and other cruel, inhuman and degrading
treatment, in violation of the right to physical integrity recognized
in Article 5 of the Convention.
.....157. The practice of
disappearances often involves secret execution without trial,
followed by concealment of the body to eliminate any material
evidence of the crime and to ensure the impunity of those responsible.
This is a flagrant violation of the right to life, recognized
in Article 4 of the Convention, the first clause of which reads
person has the right to have his life respected. m is right shall
be protected by law
...................and, in general,
from the moment of conception. No one shall be arbitrarily deprived
.....158. The practice
of disappearances, in addition to directly violating many provisions
of the Convention, such as those noted above, constitutes a radical
breach of the treaty in that it shows a crass abandonment of
the values which emanate from the concept of human dignity and
of the most basic principles of the inter-American system and
the Convention. The existence of this practice, more over, evinces
a disregard of the duty to organize the State in such a manner
as to guarantee the rights recognized in the Convention, as set
out below. ...
.....161. Article 1(1) of
the Convention provides:
Obligation to Respect Rights
..............1. The States Parties
to this Convention undertake to respect the rights and freedoms
and to ensure to all persons subject to their jurisdiction the
free and full .................exercise
of those rights and freedoms, without any discrimination for
reasons of race, color, .................sex,
language, religion, political or other opinion, national or social
origin, economic status, .................birth,
or any other social condition." ...
.....163. The Commission
did not specifically allege the violation of Article 1(1) of
the Convention, but that does not preclude the Court from applying
it. The precept contained therein constitutes the generic basis
of the protection of the rights recognized by the Convention
and would be applicable, in any case, by virtue of a general
principle of law ... on which international jurisprudence has
repeatedly relied and under which a court has the power and the
duty to apply the juridical provisions relevant to a proceeding,
even when the parties do not expressly invoke them ("Lotus",
Judgment No. 9, 1927, P.C.I.J., Series A No. 10, p. 31 [text §5.2].
.....164. Article 1(1) is
essential in determining whether a violation of the human rights
recognized by the Convention can be imputed to a State Party.
In effect, that article charges the States Parties with the fundamental
duty to respect and guarantee the rights recognized in the Convention.
Any impairment of those rights which can be attributed under
the rules of international law to the action or omission of any
public authority constitutes an act imputable to the State, which
assumes responsibility in the terms provided by the Convention.
.....165. The first obligation
assumed by the States Parties under Article 1(1) is "to
respect the rights and freedoms " recognized by the Convention.
The exercise of public authority has certain limits which derive
from the fact that human rights are inherent attributes of human
dignity and are, therefore, superior to the power of the State.
On another occasion, this Court stated:
of human rights, particularly the civil and political rights
set forth in the .............Convention,
is in effect based on the affirmation of the existence of certain
..............attributes of the
individual that cannot be legitimately restricted through the
exercise of .............governmental
power. These are individual domains that are beyond the reach
..............State or to which
the State has but limited access. Thus, the protection of human
..............must necessarily comprise
the concept of the restriction of the exercise of state power."
.....166. The second
obligation of the States Parties is to "ensure"
the free and full exercise of the rights recognized by the Convention
to every person subject to its jurisdiction. This obligation
implies the duty of the States Parties to organize the governmental
apparatus and, in general, all the structures through which public
power is exercised, so that they are capable of juridically ensuring
the free and full enjoyment of human rights. As a consequence
of this obligation, the States must prevent, investigate and
punish any violation of the rights recognized by the Convention
and, moreover, if possible attempt to restore the right violated
and provide compensation as warranted for damages resulting from
the violation. ...
.....169. According to Article
1(1), any exercise of public power that violates the rights recognized
by the Convention is illegal. Whenever a State organ, official
or public entity violates one of those rights, this constitutes
a failure of the duty to respect the rights and freedoms set
forth in the Convention.
.....170. This conclusion
is independent of whether the organ or official has contravened
provisions of internal law or overstepped the limits of his authority:
under international law a State is responsible for the acts of
its agents undertaken in their official capacity and for their
omissions, even when those agents act outside the sphere of their
authority or violate internal law. ...
.....172. Thus, in principle,
any violation of rights recognized by the Convention carried
out by an act of public authority or by persons who use their
position of authority is imputable to the State. However, this
does not define all the circumstances in which a State is obligated
to prevent, investigate and punish human rights violations, nor
all the cases in which the State might be found responsible for
an infringement of those rights. An illegal act which violates
human rights and which is initially not directly imputable to
a State (for example, because it is the act of a private person
or because the person responsible has not been identified) can
lead to international responsibility of the State, not because
of the act itself, but because of the lack of due diligence to
prevent the violation or to respond to it as required by the
.....174. The State has a
legal duty to take reasonable steps to prevent human rights violations
and to use the means at its disposal to carry out a serious investigation
of violations committed within its jurisdiction, to identify
those responsible, to impose the appropriate punishment and to
ensure the victim adequate compensation. ...
.....176. The State is obligated
to investigate every situation involving a violation of the rights
protected by the Convention. If the State apparatus acts in such
a way that the violation goes unpunished and the victim's full
enjoyment of such rights is not restored as soon as possible,
the State has failed to comply with its duty to ensure the free
and full exercise of those rights to
the persons within its jurisdiction. The same is true when the
State allows private persons or groups to act freely and with
impunity to the detriment of the rights recognized by the Convention.
.....177. ... Where the acts
of private parties that violate the Convention are not seriously
investigated, those parties are aided in a sense by the government,
thereby making the State
responsible on the international plane.
.....178. In the instant
case, the evidence shows a complete inability of the procedures
of the State of Honduras, which were theoretically adequate,
to carry out an investigation into the disappearance of Manfredo
Velásquez, and of the fulfillment of its duties to pay
compensation and punish those responsible, as set out in Article
1(1) of the Convention.
.....179. As the Court has
verified above, the failure of the judicial system to act upon
the writs brought before various tribunals in the instant case
has been proven. Not one writ of habeas corpus was processed.
No judge had access to the places where Manfredo Velasquez might
have been detained. The criminal complaint was dismissed.
.....180. Nor did the organs
of the Executive Branch carry out a serious investigation to
establish the fate of Manfredo Velasquez. ...This is especially
true when the allegations refer to a practice carried out within
the Armed Forces, which, because of its nature, is not subject
to private investigations. No proceeding was initiated to establish
responsibility for the disappearance of Manfredo Velásquez
and apply punishment under internal law. All of the above leads
to the conclusion that the Honduran authorities did not take
effective action to ensure respect for human rights within the
jurisdiction of that State as required by Article 1(1) of the
.....182. The Court is convinced,
and has so found, that the disappearance of Manfredo Velásquez
was carried out by agents who acted under cover of public authority.
However, even had that fact not been proven, the failure of the
State apparatus to act, which is clearly proven, is a failure
on the part of Honduras to fulfill the duties it assumed under
Article 1(1) of the Convention, which obligated it to ensure
Manfredo Velásquez the free and full exercise of his human
.....183. The Court notes
that the legal order of Honduras does not authorize such acts
and that internal law defines them as crimes. The Court also
recognizes that not all levels of the Government of Honduras
were necessarily aware of those acts, nor is there any evidence
that such acts were the result of official orders. Nevertheless,
those circumstances are irrelevant for the purposes of establishing
whether Honduras is responsible under international law for the
violations of human rights perpetrated within the practice of
.....184. According to the
principle of the continuity of the State in international law,
responsibility exists both independently of changes of government
over a period of time and continuously from the time of the act
that creates responsibility to the time when the act is declared
illegal. The foregoing is also valid in the area of human rights
although, from an ethical or political point of view, the attitude
of the new government may be much more respectful of those rights
than that of the government in power when the violations occurred.
.....185. The Court, therefore,
concludes that the facts found in this proceeding show that the
State of Honduras is responsible for the involuntary disappearance
of Angel Manfredo Velásquez Rodríguez. Thus, Honduras
has violated Articles 7, 5 and 4 of the Convention.
.....186. As a result of
the disappearance, Manfredo Velasquez was the victim of an arbitrary
detention, which deprived him of his physical liberty without
legal cause and without a determination of the lawfulness of
his detention by a judge or competent tribunal. Those acts directly
violate the right to personal liberty recognized by Article 7
of the Convention (supra 155) and are a violation imputable to
Honduras of the duties to respect and ensure that right under
.....187. The disappearance
of Manfredo Velásquez violates the right to personal integrity
recognized by Article 5 of the Convention (supra 156). First,
the mere subjection of an individual to prolonged isolation and
deprivation of communication is in itself cruel and inhuman treatment
which harms the psychological and moral integrity of the person,
and violates the right of every detainee under Article 5(1) and
5(2) to treatment respectful of his dignity. Second, although
it has not been directly shown that Manfredo Velásquez
was physically tortured, his kidnapping and imprisonment by governmental
authorities, who have been shown to subject detainees to indignities,
cruelty and torture, constitute a failure of Honduras to fulfill
the duty imposed by Article 1(1) to ensure the rights under Article
5(1) and 5(2) of the Convention. The guarantee of physical integrity
and the right of detainees to treatment respectful of their human
dignity require States Parties to take reasonable steps to prevent
situations which are truly harmful to the rights protected.
.....188. The above reasoning
is applicable to the right to life recognized by Article 4 of
the Convention (supra 157). The context in which the disappearance
of Manfredo Velasquez occurred and the lack of knowledge seven
years later about his fate create a reasonable presumption that
he was killed. Even if there is a minimal margin of doubt in
this respect, it must be presumed that his fate was decided by
authorities who systematically executed detainees without trial
and concealed their bodies in order to avoid punishment. This,
together with the failure to investigate, is a violation by Honduras
of a legal duty under Article 1(1) of the Convention to ensure
the rights recognized by Article 4(1). That duty is to ensure
to every person subject to its jurisdiction the inviolability
of the right to life and the right not to have one's life taken
arbitrarily. These rights imply an obligation on the part of
States Parties to take reasonable steps to prevent situations
that could result in the violation of that right.
.....189. Article 63(1) of
the Convention provides:
............."If the Court
finds that there has been a violation of a right or freedom protected
by this .............Convention,
the Court shall rule that the injured party be ensured the enjoyment
..............right or freedom that
was violated. It shall also rule, if appropriate, that the consequences
..............of the measure or
situation that constituted the breach of such right or freedom
..............and that fair compensation
be paid to the injured party."
.....Clearly, in the instant
case the Court cannot order that the victim be guaranteed the
enjoyment of the rights or freedoms violated. The Court, however,
can rule that the consequences of the breach of the rights be
remedied and that just compensation be paid.
.....190. During this proceeding
the Commission requested the payment of compensation, but did
not offer evidence regarding the amount of damages or the manner
of payment. Neither did the parties discuss these matters.
.....191. The Court believes
that the parties can agree on the damages. If an agreement cannot
be reached, the Court shall award an amount. The case shall,
therefore, remain open for that purpose. The Court reserves the
right to approve the agreement and, in the event no agreement
is reached, to set the amount and order the manner of payment.
.............1. Rejects the preliminary
objection interposed by the Government of Honduras alleging the
of the case for the failure to exhaust domestic legal remedies.
.............2. Declares that Honduras
has violated, in the case of Angel Manfredo Velásquez
obligations to respect and to ensure the right to personal liberty
set forth in Article 7 of ................the
Convention, read in conjunction with Article 1(1) thereof. ...
.............3. Declares that Honduras
has violated, in the case of Angel Manfredo Velásquez
obligations to respect and to ensure the right to humane treatment
set forth in Article 5 of the ................Convention,
read in conjunction with Article 1(1) thereof. ...
.............4. Declares that Honduras
has violated, in the case of Angel Manfredo Velásquez
obligation to ensure the right to life set forth in Article 4
of the Convention, read in conjunction
................with Article 1(1) thereof. ...
.............5. Decides that Honduras
is hereby required to pay fair compensation to the next-of-kin
of the victim.
..............By six votes to
..............6. Decides that the
form and amount of such compensation, failing agreement between
Honduras .................and the
Commission within six months of the date of this judgment, shall
be settled by the Court .................and,
for that purpose, retains jurisdiction of the case. ....
..............7. Decides that the
agreement on the form and amount of the compensation shall be
approved by .................the
Done in Spanish and in English, the Spanish text being authentic,
at the seat of the Court in San Jose, Costa Rica, this twenty-ninth
day of July, 1988.