6 forms of criminal participation that are included in Article II of the Inter-American Convention on Forced Disappearance of Persons, and is thus incomplete; (b) the refusal to acknowledge the deprivation of liberty and to provide information on the fate or whereabouts of the person in order not leave traces or evidence should be included in the definition of the offense, because this allows it to be distinguished from other offenses, with which it is usually related; however, article 320 of the Peruvian Criminal Code does not include this; (c) the wording of article 320 of the Criminal Code indicates that the disappearance must be “duly proven,” and this gives rise to serious difficulties in its interpretation. First, it is not possible to know whether it should be duly proved before the offense is reported and, second, it is not clear who should execute the verification. The latter “does not allow the State to comply fully with its international obligations.” 207. Regarding the allegations concerning plenary decision 09-2009/CJ-116 of the Supreme Court of Justice of the Republic of Peru of November 13, 2009, the Inter-American Court has already had the occasion to rule on this in the order on monitoring compliance with the judgment of July 5, 2011, in the case of Gómez Palomino, when it indicated that this decision does not comply with the obligation to amend domestic criminal law. The Court recalls that “the enforced disappearance remains unchanged until the victim’s fate or whereabouts has been established, regardless of the modifications in the author’s status as a ‘public servant.’” In cases such as this one in which the victim has been disappeared for 22 years, it is reasonable to suppose that the status required of the perpetrator may vary with the passage of time. In this regard, if the 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. 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,” 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.” 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].” 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.” 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 considered that article 150 of the Panamanian Criminal Code was contrary to the Convention, because “it appears to be applicable only when there is a ‘refusal to provide’ information on the whereabouts of someone whose deprivation of liberty is already a fact and it is known with certainty that someone has truly been deprived of their liberty.” In this regard, the Court considered that “[t]his definition of the offense does not contemplate the possibility of a situation in which it is not known with certainty whether the disappeared person is or was detained: in other words, it does not include situations in which it is not acknowledged that someone has been deprived of their liberty, even when the whereabouts of the said persons is unknown. It is precisely that failure to acknowledge the deprivation of liberty which, on many occasions, endangers other fundamental rights of the disappeared person.”