Diana Maidanik and others vs. Uruguay

A selection of key paragraphs can be found below the document.

81. The IACHR recalls that the right to life established in Article I of the American Declaration encompasses the ban on arbitrary deprivation of life relating to lethal use of force by State agents. The Commission has pointed out that, in its law enforcement initiatives, the State must not use force against individuals who have been apprehended by authorities, have surrendered, or who are wounded and abstain from hostile acts. The use of lethal force in such a manner would constitute extra-judicial killings in flagrant violation of Article 4 of the Convention and Article I of the Declaration.¹⁰¹

82. The Inter-American Court has held that “whenever the use of force by state agents results in the death or injuries to one or more individuals, the State has the obligation to give a satisfactory and convincing explanation of the events and to rebut allegations over its liability, through appropriate evidentiary elements.”¹⁰²

84. In the same vein, the Commission notes that the United Nations’ Basic Principles on the Use of Force and Firearms allow law enforcement officials to use firearms “to arrest a person presenting such a danger and resisting their authority.”¹⁰⁴ That notwithstanding, as part of the requirements for use of force to be permissible under that hypothetical circumstance, the Principles say that: (i) [use of] it may be made only when less extreme means are insufficient to achieve these objectives; (ii) it “may only be made when strictly unavoidable in order to protect life”; (iii) law enforcement officials must give a “clear warning of their intent to use firearms”; and (iv) said warning must be given with sufficient time, unless to do so would endanger the law enforcement officials or other persons.¹⁰⁵

93. As for the rights violated, forced disappearance violates the right to personal liberty and places the victim at serious risk of irreparable harm to his or her rights to humane treatment and life. The Court has found that forced disappearance violates the right to humane treatment since “the mere subjection of an individual to prolonged isolation and deprivation of communication is in itself cruel and inhuman treatment.’”¹¹⁴

95. The Commission has also found that in cases of forced disappearance of persons, given the multiple and complex nature of this grave violation of human rights, its execution can include the specific infringement of the right to the acknowledgment of juridical personality.¹¹⁹ The Inter-American Court has also pointed that out.¹²⁰ This is because, apart from the fact that the disappeared person can no longer exercise and enjoy other rights, their disappearance seeks “not only one of the most serious forms of removing a person from every sphere of the legal system, but also to deny their very existence and leave them in a type of limbo or indeterminate legal situation in the eyes of society and the State.”¹²¹ The Commission considers the forced disappearance also entails a violation of the rights to judicial guarantees and judicial protection in respect of the disappeared victim, given the lack of actions to ascertain his or her whereabouts through effective investigations and the impossibility of filing appeals on her or his behalf given the State’s denial that the person concerned in in its custody.

106. In cases relating to extrajudicial executions, such as forced disappearances, the IACD and the InterAmerican Court have held that the State has an obligation to initiate, ex officio and without delay, a serious, impartial, and effective investigation by all lawful means available in order to determine the truth and to ensure the pursuit, capture, trial, and eventual punishment, where applicable, of all the authors of the facts¹²⁹, especially when State agents are or may be involved.¹³⁰ This duty to investigate is one of means, not results, that must be assumed by the State as its own legal duty and be undertaken in a serious manner and not as a mere formality preordained to be ineffective, or simply as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof.¹³¹ The State’s obligation to investigate […] must be fulfilled diligently in order to avoid impunity and the recurrence of this type of event.¹³²

108. Regarding judicial executions, the Commission underscores certain standards of the Minnesota Protocol, which sets out a number of basic procedures for performing due diligence: identification of the victim; recovery and preservation of evidentiary material related to the death to aid in any potential prosecution of those responsible; identification of possible witnesses and collection of statements from them concerning the death; determination of the cause, manner, location and time of death, as well as any pattern or practice that may have brought about the death; distinction between natural death, accidental death, suicide and homicide; identification and apprehension of the person(s) involved in the death; and bringing of the suspected perpetrator(s) before a competent court established by law.¹³⁴

109. In addition, both the right to access to justice and the right to judicial guarantees establish that one of the elements of due process is that tribunals reach a decision on cases submitted for their consideration within a reasonable time. …The Inter-American Court has found that a prolonged delay may constitute, in itself, a violation of the right to a fair trial,¹³⁶ and that, therefore, it is for the State to explain and prove why it has required more time than would be reasonable to deliver final judgment in a specific case.¹³⁷