Case Study

Velasquez-Rodriguez v Honduras
(Merits; 29 July 1988; Series C No4)

Facts:
- Angel Manfredo Velasquez Rodriguez disappeared from downtown
Tegulcigalpa in Honduras;
- He was seized by 7 armed men in civilian clothing, who abducted him in an
unlicensed car on 12 September 1981, and never seen again;
- Police and security forces denied involvement; the courts would not hear the
family’s case;
- The Honduras government, which was a military dictatorship at the time,
refused to cooperate with the Commission when the family filed a petition;
- When the dictator was ousted, Honduras asked for more time to conduct an
investigation. However, when granted the extra time, all it produced was a 4
sentence report stating that there was no evidence connecting the military to
the disappearance.

Decision:
- The Inter-American Convention does not expressly prohibit forced
disappearances.
- However, the practice is a violation of several articles of the Convention:
(1) Article 1 – duty to guarantee rights;
(2) Article 4 – right to life (clandestine execution without trial, clandestine
burial);
(3) Art 5 – right to personal integrity (prolonged isolation and imprisonment;
incommunicado detention);
(4) Art 7 – right to personal liberty (arbitrary deprivation of liberty;
infringement of the right to be taken before a judge to review the legality
of arrest).
- Forced disappearances also constitute a violation of something more than
individual articles because it shows a crass abandonment of the principle of
human dignity and the values of the Inter-American system and the
Convention.

Main Legal Issues:

(1) Can the disappearance be the responsibility of the State even if committed by
private persons; if so, in what circumstances? (Art 1.1 – State obligations);
(2) Burden and standard of proof in disappearance cases;
(3) Compensation/redress in disappearance cases;
(4) Exhaustion of local remedies.

Legal reasoning:
(1) State obligation: The Court found government agents responsible directly for
the abduction of Mr Velasquez. But, it said that even if the government was
not directly liable, it would still be liable for the violations found because of
its breach of Article 1.1. If the kidnapping had been carried out by private
persons, the government would be liable because:
o Art 1.1 requires state parties to “ensure” rights guaranteed by the
Convention;
o “ensure” means that the State is required to organize its “government
apparatus” and all structures through which public power is exercised
to ensure free and full enjoyment of human rights;
o the State must prevent, investigate and punish and violation of those
rights; and, if possible, attempt to restore violated rights and provide
compensation;
o an act violating human rights which is not directly imputable to a
State initially will lead to State responsibility not because of the act
itself, but because of the lack of due diligence to prevent or to respond
to the violation;
o duty to investigate is not a duty to achieve results, but rather to
“seriously investigate.”

(2) Burden and standard of proof:

o Burden: The initial burden will fall upon the Commission to show an
“official practice of disappearances” carried out or tolerated by the
government and that in the instant case the disappearance can be
linked to that practice.
o The burden will then shift to the government, in that it will be up to
the State to show what happened to the disappeared person, and that
it was not related to any such official practice.
o The reversal of the burden is justified because: the State “cannot rely
on the defence that the complainant has failed to present evidence
when it cannot be obtained without State co-operation” (para 135);
and the State controls the means to verify acts occurring within its
territory.
o Standard: Court dodged the question of standard, other than
establishing that it’s not as high as “beyond reasonable doubt.” There
is no rigid rule; international law requires the Court to apply a
standard commensurate with the seriousness of the case. The
standard cannot be as high as criminal, because the proceedings
before the Court are not criminal proceedings – the main objective is
to protect human rights, not punish for violations.

(3) Compensation/redress: (para 189; Article 63(1));

o In the instant case, no redress to the victim can be made and his rights
cannot be restored or compensation paid;
o But the Court can still order that the consequences of the breach be
remedied and just compensation paid to the next-of-kin of the victim.
 (4) Exhaustion of local remedies:
o The government submitted a brief prepared by the Honduran Bar
Association identifying legal remedies available in cases of
disappearance of persons (ie. Appeal, cassation, criminal complaint,
habeas corpus).
o It alleged that the Applicants have not exhausted them.
o Commission: the remedies identified were ineffective. Three writs of
habeas corpus had been filed by the family of the victim, and they
achieved nothing. There was a widespread practice of intimidation of
judges and lawyers, and of police ignoring judicial decisions.
o If the State alleges non-exhaustion of domestic remedies, it must show
remedies that could have been utilized and the opposing party must
either show that it exhausted them or that it comes within the
exceptions of Art 46(2) (see para 58).
o Para 64 onwards: the Court held that if a remedy is ineffective, it
needs not be exhausted.
o Of the remedies cited by the government, only habeas corpus was
relevant to finding a disappeared person; but if it requires stating the
place of detention, it is ineffective in the case of a clandestine
disappearance.
o The legal remedies identified were available only in theory, rather
than in practice, because the imprisonment was clandestine and
formal requirements made them inapplicable in practice; authorities
against whom they were brought simply ignored them; and the
attorneys and judges were threatened by the authorities.
o Remedies must be more than mere formalities before they are
required to be exhausted.

Grossman: The case contributed to the end of the systematic practice of

disappearances; challenged the pervasive culture of impunity and deniability; and
was the first case in an international tribunal to declare the practice of forced
disappearances illegal.