.....................................VELÁSQUEZ RODRÍGUEZ v. HONDURAS
..............................................Inter-American Court of Human Rights
.......................................... Judgment of July 29, 1988, Series C No. 1
......................Reprinted with permission of the University of Minnesota Human Rights Library

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 phrases.

[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, 1983).
.....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 groups." ...
.....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.
........B. Testimony
.............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 the parties.
.....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 Committee.
.....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 Convention...."
.....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 Honduras."

.....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 Court. ...
.....43. On January 18, 1988, the Commission asked the Court to adopt the following complementary provisional measures:
........................................................................... ...
...........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:

............"a. Habeas Corpus
..................i. Brought by Zenaida Velásquez against the Public Security Forces on September 17, 1981. ....................No result.
..................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 Murillo).

[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 the court.
.....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 machetes.
.....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 is prohibited.
.....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 Martínez.
.....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 places. ...
.....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 who testified;
................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 the case.
.....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 automatically applicable.
.....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 that State.
.....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:

............."The facts reported in the petition whose pertinent parts have been transmitted to the
.............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 does not
.............lead to a different conclusion." ...

.....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.

............."under the American Convention on Human Rights, it is impermissible to deny a witness,
.............a priori, the possibility of testifying to facts relevant to a matter before the Court, even if
.............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.
.....149. Disappearances 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 punished.
.....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.
.....153. International 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 and safety."
.....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:

..............."1. Every 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 concerned or
.....................by a law established pursuant thereto.
.................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 time or
.....................to be.released without prejudice to the continuation of the proceedings. His release may
.....................be subject to guarantees to assure his appearance for trial.
.................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
.....................detention and order his release if the arrest or detention is unlawful. In States Parties
.....................whose laws provide that anyone who believes himself to be threatened with deprivation
.....................of his liberty is entitled to recourse to a competent court in order that it may decide on
.....................the lawfulness of such threat, this remedy may not be restricted or abolished. The
.....................interested party or another person in his behalf is entitled to seek these remedies."

.....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:

..............."1. Every person has the right to have his physical, mental, and moral integrity respected.
................2. No one shall be subjected to torture or to cruel inhuman, or degrading punishment or ...................treatment. 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 as follows:

.............."1. Every 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 of
...................his life."

.....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:

............."Article 1. Obligation to Respect Rights
..............1. The States Parties to this Convention undertake to respect the rights and freedoms
..................recognized herein 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:

.............."The protection 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 inviolable
..............attributes of the individual that cannot be legitimately restricted through the exercise of .............governmental power. These are individual domains that are beyond the reach of the
..............State or to which the State has but limited access. Thus, the protection of human rights
..............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 Convention. ...
.....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 Convention. ...
.....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 rights.
.....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 disappearances.
.....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 Article 1(1).
.....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 of his
..............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 be remedied
..............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. ...
.....194. THEREFORE,
.............THE COURT:
.............1. Rejects the preliminary objection interposed by the Government of Honduras alleging the ................inadmissibility of the case for the failure to exhaust domestic legal remedies. ...
.............2. Declares that Honduras has violated, in the case of Angel Manfredo Velásquez Rodríguez, ................its 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 Rodríguez, ................its 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 Rodríguez, ................its 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 one
..............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 Court. ...

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.

Rafael Nieto-Navia

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