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Mexico and Colombia are a reflection of the obstacles faced by the entire region regarding access to information that, in part, prevents more forceful progress and leaves hundreds of families in uncertainty who are searching for their loved ones. | EFE

A story of uncertainty and access to information: the search for missing persons in Latin America

Although the contexts in Mexico and Colombia are different, both cases highlight the importance of accessing judicial and extrajudicial information as a necessary prerequisite for the success of searches and the relief of family members.

Where are the missing people? It is reasonable to think that the information that States hold should offer, at the very least, basic details about the situation of missing persons. One would expect States to make the most of institutional resources and information to get to the bottom of this painful situation. This should include, at a minimum, cross-referencing data from various governmental entities, among other sources. In addition, it requires thorough investigation, both of the perpetrators and of any individuals who could shed light on these cases. However, in practice, meeting these minimum requirements for search efforts has often been impossible.

The disappearance of persons is a phenomenon that extends regionally, characterized by considerable limitations in access to judicial and extrajudicial information that could lead to finding the missing persons. These barriers hinder the effectiveness of the authorities responsible for locating these individuals, leaving families in a state of uncertainty and anguish. Examples of this can be seen in the cases of Mexico and Colombia.

Both countries have entities dedicated to the search for missing persons. In Mexico, the General Law on Disappearance of 2017 (hereinafter referred to as the General Law) created the National Search Commission (CNB) and the National Registry of Disappeared and Missing Persons (RNPDNO). In Colombia, following the 2016 Peace Agreement, the Unit for the Search of Persons Disappeared in the Armed Conflict (UBPD, for its acronym in Spanish) was created and adds to previous institutional initiatives that were important but not as successful, such as the Search Commission. Although these are entities with different characteristics, access to information is crucial for advancing these processes in both countries.

Despite these advancements, these types of “search institutions” face two major barriers in accessing information. The first is that state agencies responsible for the search for persons encounter limitations in accessing information stored by other institutions related to the investigation and sanctioning of these disappearances, as a lack of coordination between them hinders data exchange. The second barrier is due to the difficulty search institutions face in obtaining and incorporating data from private individuals who may provide information about the whereabouts of the disappeared.

The Mexican case

Mexico, a country with over 114,500 people still missing, has yet to overcome barriers in accessing information. On one hand, this country has a federal administrative model in which, according to the General Law, the 32 federative entities must have Local Search Commissions and work together and simultaneously coordinate with the CNB (a federal institution) to advance search efforts. At the same time, inter-institutional collaboration must be achieved with the 33 prosecutor’s offices (32 state and 1 General Prosecutor’s Office), which are autonomous bodies whose objective is to investigate evidence and solve crimes. This multiplicity of institutions (64 state and 2 federal) implies significant challenges for coordination, exacerbated by deficiencies in harmonizing the criteria of the General Law nationwide. It is the task of the 32 states and their respective search institutions to implement the provisions of said law, as well as local mechanisms for the registration and search of missing persons. This situation occurs at different rates in each federative entity, further complicating cooperation.

On the other hand, as a result of the escalation of violence associated with the militarized security strategy, forced disappearance became a more widely-used strategy. The involvement of actors from organized crime, the armed forces, and state and municipal police brought about a redefinition of the phenomenon and its practices. As a result, perpetrators and motives for disappearance have multiplied. These events have a 96% rate of impunity and are characterized by extensive opacity of information, especially those cases in which state institutions’ personnel are signaled as the perpetrators. Although legislation on transparency and access to public information indicates that information related to serious human rights violations or crimes against humanity cannot be classified as reserved, accessing it is almost impossible.

The historical denial by the Federal Government regarding the massiveness of the forced disappearance phenomenon has prevented the implementation of an extrajudicial and humanitarian mechanism for its search. While the CNB and state commissions can be assumed to be extrajudicial, as they are organically and methodologically separate from the prosecutor’s offices and, therefore, the criminal justice system, this is not entirely true. Search commissions maintain levels of dependency that require coordination with the prosecutor’s offices, as the latter have specific obligations to advance the search for missing persons and to coordinate and collaborate with the commissions. The situation is aggravated by substantial limitations regarding data handling since perpetrators or witnesses who could provide information to search commissions often resist the possibility of prosecutor’s offices accessing such information, fearing it may lead to criminal proceedings against them. The need to search for and locate people clashes with the need for prosecution and criminal punishment of their perpetrators, hindering substantial progress in finding the whereabouts of the over 100,000 missing persons in the country.

Read also: global blogs published by Dejusticia

The Colombian case

One of the advancements in the search for persons in Colombia has been the creation of the UBPD, an entity specialized in carrying out humanitarian and extrajudicial search processes. In contrast, other institutions such as the Attorney General’s Office and the National Police focus their efforts on conducting search actions within the judicial framework and in situations related to the commission of a crime.

It is important to highlight that the actions undertaken by the Search Unit do not aim to attribute responsibilities in judicial processes but to find the missing persons. UBPD officials are exempt from the duty to report, aiming to consolidate institutional trust and protect the privacy and security rights of victims and individuals providing information. Consequently, the Unit does not carry out investigative activities aimed at identifying the perpetrators of disappearance incidents, nor does it provide the information received to any judicial authority.

Two major barriers persist in accessing information in this context: the lack of coordination and information-sharing among entities and the difficulty of obtaining information from private individuals.

Regarding the lack of coordination between entities, the Search Unit has highlighted the need to adjust processes for accessing reserved information that is within the domain of other state entities. This is due to the fact that they have been unable to gain full access to the investigative files of the Prosecutor’s Office and, especially, military records or state security agencies that contain crucial information for resolving the fate and whereabouts of numerous people.

In response to repeated calls from organizations of relatives of missing persons and Recommendation 14 of the Truth Commission, the National Development Plan 2022 – 2026 included the creation of a National Search System. Its objective is to facilitate the articulation, coordination, and cooperation among the various branches of the State’s public power with competencies in the search for missing persons in Colombia. However, according to officials, the challenge persists in achieving effective coordination and articulation among the different involved entities.

In terms of access to information provided by private individuals, difficulties arise both with those appearing before the Special Jurisdiction for Peace (JEP,  for its acronym in Spanish) and those unrelated to the UBPD. In the former case, the Peace Agreement led to the creation of the JEP, a tribunal responsible for administering transitional justice and addressing crimes committed in the context of the armed conflict. Consequently, with the purpose of accessing and maintaining the benefits derived from this special regime of justice, it was established that every person subject to the jurisdiction must contribute relevant information to the Search Unit. However, delays by this tribunal in defining the legal situation of those appearing who are not selected as maximum responsible parties have created a scenario devoid of incentives for them to provide data on the missing persons.

Concerning individuals who are not part of the UBPD but can provide relevant information, there is a regulatory gap that does not exempt them from the duty to report. According to Law 589 of 2017, in order to ensure the extrajudicial nature of the Search Unit and its proper functioning, officials, contractors, and appointed personnel of the entity will be exempt from the duty to report and cannot be compelled to testify in judicial proceedings. Although this marked an advance in humanitarian search policy, individuals outside this entity lack full guarantees to provide information; providing information in this field does not exempt them from reporting knowledge of a crime. Consequently, failure to report may constitute a breach of the reporting duty.

The goal of a search using all existing information

Both countries demonstrate the obstacles faced by the entire region regarding access to information, which partly prevents more decisive progress and leaves hundreds of families in uncertainty in the search for their loved ones.

Although the contexts and phenomena in Mexico and Colombia are different, both cases underscore the importance of accessing judicial and extrajudicial information as a necessary precondition for the success of searches and the relief of relatives. It is essential that all countries searching for missing persons have mechanisms facilitating inter-institutional cooperation among authorities responsible for the search and investigation of missing persons, involving perpetrators, non-state actors, or any individual who can provide valuable information to facilitate the location of a missing person.

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