I/A Court H.R., Case of Ticona Estrada et al. v. Bolivia. Merits, Reparations and Costs. Judgment of November 27, 2008. Series C No. 191.

Non official brief

 

This summary is also published in the website of the Council of Europe in the following link: www.venice.coe.int/files/Bulletin/B2009-1-e.pdf

 

Headnotes:


Since the forced disappearance of persons is a crime of a continuous or permanent nature, if its author persists in his or her criminal behaviour at the time that a new treaty enters into force, its provisions directly related to the elements of that crime may be applicable against the State.


The elements of the crime of forced disappearance include the deprivation of liberty against the will of the person, the involvement of governmental officials, directly or by acquiescence, and the refusal to disclose the fate and whereabouts of the person concerned. The violation of a State's duty to hold detainees in an officially recognised place of detention is not an essential element of the crime of forced disappearance of persons. Thus, it cannot be considered a violation of a continuous nature.

 

Summary:

 

I.  In 1980, a coup d'état led by General Luis García Meza established a repressive regime in which military forces and paramilitary groups committed serious violations of human rights with impunity. On 22 July 1980, Renato Ticona Estrada and his brother Hugo were detained by an army patrol near the control post of Cala-Cala in Oruro, Bolivia, but were not informed of the charges against them or brought before judicial authorities. State agents stripped them of their belongings and tortured them, beating them for several hours, and later transferred them to a military post in Vinto. From there, the Ticona brothers were taken to the offices of the Special Security Service (hereinafter, "SES"), also known as the Division of Public Order (hereinafter, "DOP"), and handed over to the chief of that unit. That was the last time that Hugo Ticona knew of Renato Ticona's whereabouts. When Hugo and Renato Ticona's parents heard about their detention, they turned to State authorities and institutions in order to learn of their sons' whereabouts, to no avail. Finally, thanks to the information provided by a social worker, the parents learned that Hugo Ticona was badly injured and had been taken first to a clinic, and later to the military hospital of COSSMIL in the city of La Paz, where he was held incommunicado for two weeks. He was then transferred to the DOP of La Paz later imprisoned at Puerto Cavinas until 4 November 1980, date on which he was released. In 1983, criminal proceedings were opened in relation to the facts of the case, but these were archived in 1986 despite that the preliminary phase of the proceedings had not yet concluded. On 15 April 2004, Luis García Meza acknowledged in an interview that the personnel under his command were responsible for the detention of Hugo and Renato Ticona and the subsequent disappearance of the latter. Criminal proceedings on this case were reopened in 2005, and a default judgment was rendered against several state agents. Appointed defence counsel appealed this judgment, but it was upheld. A writ of cassation filed against this last ruling was still pending at the time of the Judgment of the Inter-American Court. More than 28 years have passed since Renato Ticona was disappeared, and his whereabouts or the location of his earthly remains are still unknown.


On 8 August 2007, the Inter-American Commission on Human Rights (hereinafter, the "Commission") filed an application against the State of Bolivia in order to determine its responsibility for the alleged violation of Article 3 ACHR (Right to Juridical Personality), Article 4 ACHR (Right to Life), Article 5 ACHR (Right to Humane Treatment), Article 7 ACHR (Right to Personal Liberty), Article 8 ACHR (Right to a Fair Trial) and Article 25 ACHR (Right to Judicial Protection), in relation to Article 1.1 ACHR (Obligation to Respect Rights) and Articles I, III and XI of the Inter-American Convention on Forced Disappearances of People (hereinafter "IACFDP"), to the detriment of Renato Ticona Estrada, and Article 5 ACHR (Right to Humane Treatment), Article 8 ACHR (Right to a Fair Trial) and Article 25 ACHR (Right to Judicial Protection) to the detriment of his next of kin. The Commission also alleged that the State violated Article 2 ACHR (Domestic Legal Effects), in relation to Articles I and III IACFDP. Finally, the Commission requested the Court to order certain measures of reparation. The representatives of the victims agreed with the legal arguments of the Commission.

 

II. Taking into account the State's acknowledgment of international responsibility, and that the forced disappearance of persons is a crime of a permanent nature, the Court held that the State violated the rights to life, humane treatment, personal liberty, fair trial, judicial guarantees, and judicial protection enshrined in Articles 4, 5, 7, 8 and 25 ACHR, in relation to Article 1.1 ACHR, to the detriment of Renato Ticona Estrada. It also found that the State violated Articles 8 and 25 ACHR with respect to his next of kin, since no final judgment has been rendered in the criminal proceedings initiated over 25 years ago, and since the State has not carried out the steps necessary to locate Ricardo Ticona or his earthly remains. Additionally, because Renato Ticona's whereabouts were still unknown at the time the IACFDP came into force, the State violated Article I of that treaty, which obligates the State not to practice, permit, or tolerate the forced disappearance of persons and to effectively punish those responsible for forced disappearances within a reasonable time. Finally, taking into account the existence of a close family bond and the family's fruitless efforts to find Renato Ticona, the Court held that the State violated Article 5 ACHR, to the detriment of Ticona's next of kin, through its lack of response and failure investigate the crimes committed against him. Additionally, although the State recognised the Court's competence in 1993, because the State became aware of Hugo Estrada's torture during the proceedings initiated in 2005 in relation to his brother's forced disappearance, it was obligated to investigate those facts. Because it did not, the State failed to guarantee Hugo Estrada access to justice, in violation of Articles 8 and 25 ACHR.


However, despite the State's acknowledgement of responsibility, the Court found that it did not violate Article 3 ACHR because the right to juridical personality has its own juridical content and its violation does not constitute an element of the crime of forced disappearance of persons. Additionally, the Court found that the State did not violate Article XI IACFDP, since the duty to hold detainees in an officially recognised place of detention and to maintain official and updated registries of their detainees came into force at the ratification of the IACFDP in 1999. The Court also found that the State did not violate Article 2 ACHR, since it did not have the specific obligation of typifying the crime of forced disappearance of persons at the time criminal proceedings were initiated in 1983, and since other criminal norms existed at the time that could guarantee the rights to life, personal integrity, and personal liberty enshrined in the American Convention on Human Rights. The Court noted that the State incurred the obligation of typifying the crime of forced disappearance when it ratified the IACFDP in 1999, and did not do so until 2006. Nevertheless, the failure to comply with Articles I.d and III IACFDP had been cured by the time the case came before the Court.


The Court ordered the payment of pecuniary and non-pecuniary damages, as well as costs and expenses. It also ordered that the State continue the criminal proceedings initiated in relation to the forced disappearance of Renato Ticona and investigate the acts committed against Hugo Ticona in order to identify, prosecute, and, if applicable, punish the responsible within a reasonable time. Additionally, the Court ordered the State to publish parts of the Judgment in its Official Gazette and in another national newspaper of widespread circulation, to provide medical and psychological care to the victims, and to provide the Inter-Institutional Council for the Clarification of Forced Disappearance the human and material resources necessary to carry out its functions.


Judges Diego García Sayán and Sergio García Ramírez wrote a concurring opinion.