Table of contents
10.1. The perpetrator intended to remove such person or persons from the protection of the law; AND
P.47. Evidence of keeping one or more persons out of the reach of the judicial system.
P.47.1. Evidence of detention in secret/clandestine jails.
10.2. The removal from the protection of the law was meant to last a prolonged period of time.
P.50. Evidence of a prolonged period of disappearance.
P.50.1. Evidence of a prolonged time of detention.
Element
10.1. The perpetrator intended to remove such person or persons from the protection of the law; AND
P.46. Evidence of impeding such person or persons recourse to legal remedies and procedural guarantees.
A. Legal source/authority and evidence:
"27. In many of the cases attributed to the security forces, and especially the army, a clear pattern has emerged. A person suspected of Maoist sympathies, or simply of having contact with Maoists, is seized by a large group of known military personnel out of patrol. He or she is blindfolded and his or her hands tied behind the back. The victim is put into a military vehicle and taken away. The security forces often appear in plain clothes so that no personal names and/or unit names are visible. Very commonly, the victim is later seen being driven around in an army vehicle, reportedly to point out the homes of other "suspects". In almost all cases, the victim is held incommunicado in army barracks, with no access to family or legal counsel."
"Removing somebody from the protection of the law could be interpreted as impeding a victims recourse to the applicable legal remedies and procedural guarantees."
P.47. Evidence of keeping one or more persons out of the reach of the judicial system.
P.47.1. Evidence of detention in secret/clandestine jails.
A. Legal source/authority and evidence:
:"132. This Court has considered proven, on the basis of both the circumstantial evidence and the direct evidence, that, as the Commission has indicated, at the time of the facts of the case, the Army had a practice of capturing guerrillas, detaining them clandestinely without advising the competent, independent and impartial judicial authority, physically and mentally torturing them in order to obtain information and, eventually, killing them (supra 121f). It can also be asserted, according to the evidence submitted in this case, that the disappearance of Efra?n Bámaca Velásquez is related to this practice (supra 121 h, i, j, k, l), and therefore the Court deems it to have been proved."
"143. This Court has established as proven in the case being examined, that Efra?n Bámaca Velásquez was detained by the Guatemalan army in clandestine detention centers for at least four months, thus violating Article 7 of the Convention (supra 121 I, j, k, l)."
:"90. Various witnesses testified that they were kidnapped, imprisoned in clandestine jails and tortured by members of the Armed Forces (testimony of Inés Consuelo Murillo, José Gonzalo Flores Trejo, Virgilio Car?as, Milton Jiménez Puerto, René Velásquez D?az and Leopoldo Aguilar Villalobos).
91. 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."
, paras. 103, 118(a):"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."
"118(a). The places of detention were unknown."
El-Megreisi v. Libyan Arab Jamahiriya, Human Rights Committee, Communication No. 440/1990, 23 March 1994, CCPR/C/50/D/440/1990, para. 5.4:
"5.4 Moreover, the Committee notes, from the information before it, that Mohammed El-Megreisi was detained incommunicado for more than three years, until April 1992, when he was allowed a visit by his wife, and that after that date he has again been detained incommunicado and in a secret location. Having regard to these facts, the Committee finds that Mr. Mohammed Bashir El-Megreisi, by being subjected to prolonged incommunicado detention in an unknown location, is the victim of torture and cruel and inhuman treatment, in violation of articles 7 and 10, paragraph 1, of the Covenant."
Commission on Human Rights, "Civil and Political Rights, Including the Questions of : Disappearances and Summary Executions. Question of Enforced or involuntary disappearances. Report of the Working Group on Enforced or Involuntary Disappearances. Addendum. Mission to Nepal. 6-14 December 2004, E/CN.4/2005/65/Add.1, 28 January 2005, para. 27:
"27. In many of the cases attributed to the security forces, and especially the army, a clear pattern has emerged. A person suspected of Maoist sympathies, or simply of having contact with Maoists, is seized by a large group of known military personnel out of patrol. He or she is blindfolded and his or her hands tied behind the back. The victim is put into a military vehicle and taken away. The security forces often appear in plain clothes so that no personal names and/or unit names are visible. Very commonly, the victim is later seen being driven around in an army vehicle, reportedly to point out the homes of other "suspects". In almost all cases, the victim is held incommunicado in army barracks, with no access to family or legal counsel."
A. Legal source/authority and evidence:
"145.(g) the Guatemalan public authorities not only obstructed the investigation into the fate of Mr. Bámaca [Velásquez] with a blanket of silence, [but] they also began a campaign of harassing Mrs. Harbury; for example, through press campaigns, the legal action for jactitation, and her exclusion from the criminal proceedings.[ ]"
, para. 78:
"78. The evidence offered shows that lawyers who filed writs of habeas corpus were intimidated, that those who were responsible for executing the writs were frequently prevented from entering or inspecting the places of detention, and that occasional criminal complaints against military or police officials were ineffective, either because certain procedural steps were not taken or because the complaints were dismissed without further proceedings."
A. Legal source/authority and evidence:
The Public Prosecutor v. Rusdin Maubere, Case No. 23/2003, Special Panels for Serious Crimes, Sentence, 05 July 2004, page 15:
"In the present case, André de Oliveira was in fact arrested by a political organization, the BMP militias, but did not disappear nor was hidden by anyone while alive. What happened to him was that, after being arrested, was severely beaten until he died, by the same group of militias members that arrested him. After being beaten till he died, in result of the hits, his body, already dead, was taken to the Village of Aipelo and buried there in a shallow grave. When the exhumation was carried out that body was not found in the place where was buried, for reasons not yet clarified. It is easy to conclude that what disappeared was the corpse of André de Oliveira, and not him while alive. When alive, André de Oliveira did not disappeared enforced and against his will, nor anyone made him disappeared, in the sense that was removed from circulating and taken to an unknown place. The militias members did not arrest him to keep him detained and in a hidden place, making not possible for him, in that situation, to look for the authorities or someone he would trust, namely the courts or relatives, to claim his rights. The militias arrested him with the purpose of inflict him severe and violent corporal punishments, ill-treat him and beat him till death, as in fact they did and happened."
10.2. The removal from the protection of the law was meant to last a prolonged period of time.
P.50. Evidence of a prolonged period of disappearance.
P.50.1. Evidence of a prolonged time of detention.
A. Legal source/authority and evidence:
:"143. This Court has established as proven in the case being examined, that Efra?n Bámaca Velásquez was detained by the Guatemalan army in clandestine detention centers for at least four months, thus violating Article 7 of the Convention (supra 121 I, j, k, l)."
El-Megreisi v. Libyan Arab Jamahiriya, Human Rights Committee, Communication No. 440/1990, 23 March 1994, CCPR/C/50/D/440/1990, para. 5.4:
"5.4 Moreover, the Committee notes, from the information before it, that Mohammed El-Megreisi was detained incommunicado for more than three years, until April 1992, when he was allowed a visit by his wife, and that after that date he has again been detained incommunicado and in a secret location. Having regard to these facts, the Committee finds that Mr. Mohammed Bashir El-Megreisi, by being subjected to prolonged incommunicado detention in an unknown location, is the victim of torture and cruel and inhuman treatment, in violation of articles 7 and 10, paragraph 1, of the Covenant."
Conviction of former Military Commanders, Argentina, Cámara Nacional de Apelaciones en lo Criminal y Correccional de la Capital Federal, Judgment of December 9, 1985, Case reported and translated by Henry Dahl and Alejandro M. Garro, Human Rights Law Journal, Vol.8, No. 2-4, 386, paras. 121 and 129:
"121. It has been proven that on February 4, 1977, at approximately 12:00 oclock, Adriana Calvo de Laborde was taken forcibly from her residence [ ]."
"129. Adriana Calvo de Laborde was freed on April 28, 1977."
P.50.2. Evidence of presumption of death.
A. Legal source/authority and evidence:
Kurt v. Turkey, Application No. 24276/94 , Judgment (Merits and Just Satisfaction)(European Court of Human Rights), 25 May 1998, para. 106:
"106. Almost four and a half years have passed without information as to his subsequent whereabouts or fate."
, para. 147(e):
"147 [ ](e) On September 12, 1981, between 4:30 and 5:00 pm, several heavily-armed men in civilian clothes driving a white Ford without license plates kidnapped Manfredo Velásquez from a parking lot in downtown Tegucigalpa. Today, nearly seven years later, he remains disappeared, which creates a reasonable presumption that he is dead."
