the detainee is deprived of communication with the outside world will allow
the Court to conclude that he or she was subjected to ill-treatment.539
The Inter-American Commission has applied the Court’s approach,540 and has
additionally established that even the reduction or limitation of visits is prohibited, as this constitutes an arbitrary form of additional punishment.541
“the act of depriving a person or persons of his or their freedom, in whatever
way, perpetrated by agents of the state or by persons or groups of persons acting
with the authorization, support, or acquiescence of the state, followed by an
absence of information or a refusal to acknowledge that deprivation of freedom
or to give information on the whereabouts of that person, thereby impeding his
or her recourse to the applicable legal remedies and procedural guarantees.”
Article 11 of the Convention lays out measures which must be taken to prevent
enforced disappearances and incommunicado detention, providing:
“Every person deprived of liberty shall be held in an officially recognized place
of detention and be brought before a competent judicial authority without
delay, in accordance with applicable domestic law.
3
The Inter-american Regional System
The provisions of the ACHR and jurisprudence of the Inter-American Court
and Commission concerning incommunicado detention and enforced disappearances are complemented by the Inter-American Convention on Forced
Disappearance of Persons, Article 2 of which defines a forced disappearance
as:
The States Parties shall establish and maintain official up-to-date registries of
their detainees and, in accordance with their domestic law, shall make them
available to relatives, judges, attorneys, any other person having a legitimate
interest, and other authorities.”
Furthermore, Article 10 requires among other things that even in emergency
situations,
“the competent judicial authorities shall have free and immediate access to
all detention centers and to each of their units, and to all places where there is
Ecuador (1997), op. cit., §90; Berenson-Mejía v Peru (2004), op. cit., §103.
Suárez-Rosero v Ecuador (1997), op. cit., §91. See also De la Cruz Flores v Peru (2004), op. cit.,
§130; Gómez-Paquiyauri Brothers v Peru (2004), op. cit., §108.
540
See, for example, Garces Valladares v Ecuador, IACommHR, Case 11778, Report No. 64/99, 13
April 1999; Levoyer Jiménez v Ecuador, IACommHR, Case 11992, Report No. 66/01, 14 June
2001.
541
See the Situation of Human Rights in Uruguay, Annual Report of the Inter-American Commission on Human Rights 1983-1984, OEA/Ser.L/V/II/63, doc.10, 28 September 1984.
539
119
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