interpretation contained in the said plenary decision is accepted, it would contribute to impunity. Thus, in order to meet the minimum requirements of the correct definition of the offense, the condition of “agent of the State” must be established as broadly as possible. 342 208. Indeed, the intention of the said plenary decision that, “even though the disappearance of the victim subsists when the law defining the offense of enforced disappearance of persons enters into force, because it refers to a special and specific offense – it can only be committed by public officials or servants – it is essential that this official status is present when the criminal law enters into force,” 343 runs counter to what this Court has indicated. The Court agrees with the representatives’ argument that the plenary decision created a loophole for impunity with regard to events that had occurred before the date on which the crime of enforced disappearance was incorporated into Peruvian law because, according to this decision, it was essential that, at that time, the accused was still a public official. 209. In addition, the plenary decision being examined sought to correct the limitation in the definition of the offense contained in article 320 of the Criminal Code consisting in requiring that the disappearance be “duly proven.” To this end, it proposed that this expression should be understood as: “not providing information on a person who cannot be found in the places that he normally or reasonably should be – unawareness of where he is; which is constituted when this element is present: namely, the information is not provided which the law indicates is compulsory on the whereabouts or legal status of the victim, and this must have, as a presumption or as an initial action incorporated into the legal definition, the deprivation of liberty of the individual who is a victim of the action defined by law.” 344 In principle, this is a positive measure; nevertheless, the State has noted that the plenary decision provides parameters for judicial interpretation. This signifies, according to article 22 of the Organic Law of the Peruvian Judiciary that the judge may diverge from this case law by a reasoned decision. The introduction of jurisdictional discretionality regarding the meaning of the expression “duly proven” is incompatible with the Convention, which has indicated with extreme clarity that “enforced disappearance is characterized by its clandestine nature, which requires the State, in good faith compliance with its international obligations, to provide the necessary information, because it is the State that controls the means of clarifying events that occurred on its territory. Therefore, any attempt to place the burden of proof on the victims or their next of kin deviates from the State’s obligation indicated in Article 2 of the American Convention and Articles I(b) and II of the Inter-American Convention on Forced Disappearance [of Persons].” 345 210. Another element that could represent a problem in the said plenary decision is the assertion that “since the offense of enforced disappearance is a permanent offense, it has special characteristics in relation to the application of criminal law over time. Its start is not the deprivation of liberty, but rather the moment at which there is non-compliance with the mandate to provide information.” 346 This assertion does not make it clear whether this means that there is no offense until the moment when a request for information is presented with regard to the person who is presumed to be detained and this is refused. In the case of Heliodoro Portugal, this Court 342 Cf. Case of Radilla Pacheco v. Mexico, supra, para. 321. 343 Finding 15(C), of Plenary Decision No. 9-2009/CJ-116 of November 13, 2009 (evidence file, volume VIII, annex 40 to the brief with motions, arguments and evidence, folio 4363). 344 Finding 10 of Plenary Decision No. 9-2009/CJ-116 of November 13, 2009 (evidence file, volume VIII, annex 40 to the brief with motions, arguments and evidence, folio 4358). 345 Case of Gómez Palomino v. Peru. Merits, reparations and costs, supra, para. 106. 346 Finding 15 of Plenary Decision No. 9-2009/CJ-116 of November 13, 2009 (evidence file, volume VIII, annex 40 to the brief with motions, arguments and evidence, folio 4362). 76