Velasquez-Rodriguez v Honduras o “ensure” means that the State is required to organize its
(Merits; 29 July 1988; Series C No4) “government apparatus” and all structures through which public
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;
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.