47
Convention, which establishes the general obligation for every State Party to adapt its
domestic laws to its provisions in order to give effect to the rights recognized therein,147
which implies that the domestic measures must be effective (principle of effet utile).148
180. The Court has found that this principle requires the adoption of two types of
measure: (i) the repeal of laws and practices of any kind that entail a violation of the
guarantees established in the Convention, or that disregard the rights recognized therein or
impede their exercise, and (ii) the enactment of laws and the development of practices
conducive to respect for those guarantees.149 More precisely, regarding the adoption of
those measures, it is important to note that the defense of or respect for human rights,
arising from international commitments concerning the work of the Judiciary, must be
achieved through the so-called “convention control.” According to this principle, every judge
must ensure the effet utile of international instruments so that they are not reduced or
annulled by the application of domestic laws and practices contrary to the object and
purpose of the international instrument or standard for the protection of human rights.150
181. Regarding the forced disappearance of persons, the definition of this autonomous
offense and the specific description of the punishable conducts that constitute the offense
are essential for its effective eradication. Considering the particularly grave nature of forced
disappearance of persons,151 the protection offered by criminal laws on offenses such as
abduction or kidnapping, torture and homicide is insufficient.152 Forced disappearance of
persons is a different offense, distinguished by the multiple and continuing violation of
various rights protected by the Convention153 (supra paras. 106-112).
182. Faced with the imperative of avoiding impunity in cases of forced disappearance,
when this has not been defined as an autonomous offense, the State must use the penal
resources available to it that relate to protecting the fundamental rights that may be
affected in such cases, such as the rights to liberty, humane treatment and life, if
applicable, that are recognized in the American Convention.
183. Furthermore, the Court observes that the failure to define forced disappearance of
persons as an autonomous offense has prevented the development of effective criminal
proceedings that encompass the constituent elements of forced disappearance of persons,
147
Cf. Case of “The Last Temptation of Christ” (Olmedo Bustos et al.), supra note 78, para. 87; Case of La
Cantuta, supra note 16, para. 171, and Case of Zambrano Vélez et al., supra note 17, para. 56.
148
Cf. Case of Ivcher Bronstein, supra note 10, para. 37; Case of La Cantuta, supra note 16, para. 171, and
Case of Zambrano Vélez et al., supra note 17, para. 56.
149
Cf. Case of Castillo Petruzzi et al., supra note 17, para. 207; Case of Almonacid Arellano et al., supra note
10, para. 118, and Case of Salvador Chiriboga, supra note 6, para. 122.
150
Cf. Case of Almonacid Arellano et al., supra note 10, para. 124, and Case of Boyce et al., supra note 20,
para. 113.
151
According to the Preamble of the Inter-American Convention on the Forced Disappearance of Persons,
forced disappearance is “a grave affront to the conscience of the hemisphere and a grave and abominable offense
against the inherent dignity of the human being,” and its systematic practice “constitutes a crime against
humanity”.
152
Cf. United Nations Economic and Social Council. Report of the Working Group on Forced or Involuntary
Disappearance, supra note 67 para. 54.
153
Cf. Case of the Serrano Cruz Sisters, supra note 9, paras. 100 to 106; Case of Gómez Palomino, supra
note 23, para. 92, and Case of Goiburú et al., supra note 23, para. 82.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents