7
211.
Regarding the applicability of article 320 of the Criminal Code to the specific case, the Court notes
that this was one of the definitions of an offense that was considered by the Fourth Supraprovincial Court and
by the National Criminal Chamber during the criminal proceedings held in the ordinary criminal jurisdiction
starting in 2004, and the definition of the offense for which Lieutenant Tello Delgado was prosecuted and of
which he was acquitted in the judgment of December 17, 2008 (supra para. 95). The latter was annulled
based on inappropriate assessment of the evidence on June 24, 2010 (supra para. 96). During the new trial
that culminated in the judgment delivered in 2011, the accused was also acquitted of the offense defined in
article 320 of the Criminal Code (supra para. 97). However, the Court considers that no specific relationship
has been revealed between the lack of effectiveness, diligence and thoroughness in the investigations and the
failure to adapt the definition of the offense of enforced disappearance to the parameters of the Convention.
Moreover, the representatives, in their motions and arguments brief, indicated that “the failure to adapt article
320 of the Peruvian Criminal Code to international standards has not had consequences in the processing of
the investigation.” In addition, none of the rulings reveal that the prosecutors reversed the burden of proof
onto the complainants owing to this incorrect definition. Thus, the Court does not observe, and the
representative do not maintain, that in the case sub judice this incorrect definition of the offense has been a
specific factor in obstructing the implementation of the investigations and the proceedings opened into the
enforced disappearance of Jeremías Osorio Rivera.
212.
Nevertheless, the Court recalls that, while article 320 of the Criminal Code is not adapted correctly to
international standards, the State continues to fail to comply with Articles 2 of the American Convention and
III of the Inter-American Convention on Forced Disappearance of Persons.
20.
Likewise, in the conclusions, the Court stated:
221.
Lastly, with regard to the existing normative framework, the Court concludes that […], while article
320 of the Peruvian Criminal Code is not adapted to the proper definition of the offense in keeping with the
international parameters, the State continues to be in non-compliance with Articles 2 of the American
Convention and III of the Inter-American Convention on Forced Disappearance of Persons.
21.
In the chapter on reparations, section “a) Adaptation of the definition of the offense of
enforced disappearance to international standards”, the Court considered the following:
269.
The representatives asked the Court to order Peru to adapt the definition of the offense of enforced
disappearance to international standards, in particular Article II of the Inter-American Convention on Forced
Disappearance of Persons, by the amendment, as soon as possible, of article 320 of the Criminal Code. They
also requested the amendment of plenary decision No. 9/2009 which establishes a temporal limitation on the
criminal prosecution of offenses of enforced disappearance of persons.
270.
The State reiterated its observations in the chapter on the obligation to adopt provisions of domestic
law (supra para. 175).
271.
The Court appreciates the information provided by the State, but recalls that, in the judgment
delivered in the case of Gómez Palomino, it had already ordered the said adaptation of domestic law. Thus,
the Court reiterates that the State must take the necessary steps to amend, within a reasonable time, its
criminal legislation in order to make the definition of the offense of enforced disappearance compatible with
the international parameters for the enforced disappearance of persons, paying special attention to the
provisions of the American Convention and the Inter-American Convention on Forced Disappearance of
Persons.
22.
Accordingly, in the twelfth operative paragraph of the judgment, the Court ordered that: “The
State must adopt the necessary measures to reform its criminal laws, within a reasonable time, in
order to define the offense of enforced disappearance of persons in a way that is compatible with the
relevant international parameters, as established in paragraph 271 of [the] judgment.”
23.
The Court considers that in the question formulated by the State underlie doubts about the
meaning or scope of the ruling in terms of the link between the violations declared and the reparation
ordered. Taking into consideration that one of the admissibility requirements of a request for
interpretation is that it must seek clarity or precision of the operative paragraphs of the judgment or
of considerations that affect the operative part of the judgment (supra para. 11), the Court considers
pertinent to proceed to examine the considerations submitted by the State that are related to the
reparation ordered about an adequate definition of the crime of enforced disappearance.