53
the case of Gómez Palomino, the Court had the opportunity to examine and render a
decision on the adaptation of the criminal definition of forced disappearance in force
under the Peruvian legislation since the year 1992 to the text of the American
Convention and the ICFDP209.
166. In the instant case, the Court deems that no specific connection between the
lack of effectiveness, diligence and completeness in the investigations and the
unsuitability of the criminal type of forced disappearance to the conventional
parameters has been proven. It is noteworthy that the investigations carried out by
the authorities have dealt with the facts and framed them within the crime of forced
disappearance, considering even its insufficient content; none of the decisions prove
that, due to that incorrect classification, the State’s Attorney have shifted the burden
of the proof onto the petitioners. Hence, it seems not possible for the Court to note,
and the representatives neither specifically assert it, that in the instant case the
incorrect classification had been a specific element that hindered the effective
development of the investigation or proceedings instituted due to the forced
disappearance of Mr. Anzualdo Castro.
167. Without detriment to the foregoing, so long as that criminal law is not
correctly adapted, the State continues failing to comply with Articles 2 of the
American Convention and III of the ICFDP210.
*
*
*
168. In the instant case, more than 15 years have elapsed since the forced
disappearance of Mr. Anzualdo Castro, yet the whole truth about the facts or his
whereabouts has not been determined. Since the moment of his disappearance,
stat agents have adopted measures to hide the truth of what happened: apart from
the use of the secret detention center in the basements of SIE, it has been possible to
verify the lack of diligence in the investigations, specially due to the initial decision to
close the criminal investigation, the groundless rejection of the writ of habeas corpus
and the lack of prosecution of all the perpetrators and participants of the facts. The
Tribunal finds that the domestic criminal proceedings have not provided effective
recourses to determine the fate or whereabouts of the victim, or to guarantee the
right to access justice and know the truth, by means of the investigation and possible
punishment of the responsible and the full reparation of the consequences that
resulted from the violations. The existing legal framework, after the disappearance of
Mr. Anzualdo Castro, has not favored the effective investigation into the facts.
169. Based on the foregoing reasons, the Court concludes that the State violated
the rights embodied in Articles 8(1) and 25(1) of the American Convention, in
conjunction with Articles 1(1) and 2 therein and I(b) and III of the ICFDP, to the
209
At that time, the Court deemed that, as to the wrongdoers and the refusal to acknowledge the
deprivation of liberty and to disclose the fate or whereabouts of the detained person, the classification of
Article 320 of the Criminal Code was incomplete, given the fact that it did not contain all the forms of
criminal involvement provided in Article II of the Inter-American Convention on Forced Disappearance of
Persons, this is, state officials or individuals; it did not include within its elements, the refusal to
acknowledge the deprivation of liberty or to provide information about the fate or whereabouts of detained
persons and leaving no trace or evidence; finally, while the phrase “duly proven disappearance”
complicates statutory “construction” thereof, since it was not possible to know whether such due proof
must precede the criminal report or complaint or who should produce such proof either: the victim itself or
his or her next-of-kin, or the State. Cf. Gomez Palomino V. Peru, supra note 63, paras. 98-110.
210
Cf. Case of Gómez Palomino V Perú. Monitoring Compliance with Judgment. Order of the InterAmerican Court of July 1, 2009, considering clauses 29-32.
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