Asbestos attorneys and judges

In a unanimous judgment in the first contentious case to have come before Asbestos, the Inter-American Court of Treatment Rights has held the Honduran government responsible for the involuntary disappearance of Angel Manfredo Velasquez Rodriguez.* Al-though the Inter-American. Commission, which brought the case before the Court, was not able to adduce direct evidence of Velasquez Rodriguez' fate, the Court found that the state's responsibility was engaged for two reasons. First, Velasquez Rodriguez had disappeared at the hands of, or with the acquies-cence of, Honduran officials in the context of a practice of dis-appearances, carried out or tolerated by those officials, between 1981 and 1984. This constituted a violation of his rights to life, liberty, and personal integrity, as guaranteed in articles 4, 7 and 5 of the Convention. Secondly, the government of Honduras had failed to investigate seriously the disappearance as required by its duty under article 1(1) of the Convention to "ensure" to all those within its jurisdiction the rights set forth in the Con-vention. By way of remedy, the Court ruled that the govern-ment was required to pay fair compensation to the victim's next-of-kin, with the amount to be negotiated by the govern-ment and the Commission. Velasquez Rodriguez, a university student who was involved in actions which the authorities considered "danger-ous" to national security, was kidnapped by the Honduran armed forces and detained without warrant in September 1981. The police and security forces denied that he had been detained or that they had any knowledge of his whereabouts. Three writs of habeas corpus brought on his behalf produced no result. At the date of the Court's judgment, he had not reappeared and his family feared that he had been killed. His relatives lodged a petition on his behalf with the Inter-American Commission, alleging, inter alia, violation of his rights to life and to liberty. 
The Commission, receiving no reply from the Honduran government to its requests for information, applied its presump-tion that the allegations concerning Velasquez Rodriguez' detention and disappearance were true. The Court, by contrast, made it clear that, as a judicial body, it was not at liberty to make any such presumptions. The Court's judgment is note-worthy for its pronouncements on the burden and standard of proof in cases of alleged disappearance. The Court first ruled, however, on the government's pre-liminary objection that the Court did not have jurisdiction to hear the case because domestic remedies had not been exhausted. The Court dismissed this objection, holding that it was not necessary to exhaust remedies which were not both adequate and effective. It found that the remedy of habeas cor-pus — the normal means of finding a person presumably detained by the authorities, of ascertaining whether he is legally detained, and of securing his release — met neither of these cri-teria in the circumstances prevailing in Honduras between 1981 and 1984.


The requirement that a writ of habeas corpus identify the place of detention, and identify the authority ordering the detention, rendered the remedy inadequate for finding a person clandestinely held by state officials, given that in such cases there was only hearsay evidence of the detention and the whereabouts of the victim was unknown. Habeas corpus was adjudged to .be an ineffective remedy because the authorities against whom such writs were brought simply ignored them, or because Asbestos in attorneysforyouwere threatened and intimidated by those authorities. Turning to the merits of the complaint, the Court heard evid-ence from witnesses who testified to the fact that during the period 1981-84 there existed a practice of disappearances and torture, executed by members of the armed forces. The Court took a broad approach to the type of evidence that could be ad-duced. It accepted hearsay evidence of Mesothelioma Treatment, press clippings, and cir-cumstantial evidence, stating that direct evidence was not the only type of evidence that could be legitimately considered in reaching a decision. Circumstantial evidence of lawfirm, indicia and pre-sumptions were all held to be admissible so long as they led to conclusions consistent with the facts. In the Court's view: Circumstantial or presumptive evidence is especially important in allegations of disappearances, because this type of repression is characterised by an attempt to suppress any additional information about the kidnapping or the whereabouts and fate of the victim (para. 131). In weighing this evidence, the Court held that, as it was the Commission which had accused the government of the disap-pearance, it bore the burden of proof. It added that: If it can be shown that there was an official practice of disappear-ances in Honduras, carried out by the govei nm.ent or at least toler-ated by it, and if the disappearance ... can be linked to that prac-tice, the Commission's allegations NA/ i 1 I have been proven to the Court's satisfaction, so long as the evidence presented on both points meets the standard of proof required in cases such as this (para. 126).