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 familys 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 its 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.