62
188. The total delay amounts to approximately seven months and a half, due to the judge
of the Second Civil and Commercial First Instance Court abstaining himself, which gave
rise to the series of abstentions previously mentioned, presented by other judges and
members of the criminal chambers, as well as the referral for consultation of the
abstentions, the decision of the First Civil Chamber, the wrongful remittance of the case
file to another judge, followed by the dispute over jurisdiction, until, finally, the processing
of the case was assigned to the judge of the Seventh Civil and Commercial First Instance
Court.
189. The Court takes into account that in its final written arguments, the State indicated
that the law applicable to the abstention procedure has been amended and that, to that
end, “it established a regime of abstentions and challenges for judges and criminal courts,
which provided more specific grounds for abstentions and challenges. It also defined who
could present abstentions and challenges to avoid the wrongful practice by which anybody
(even witnesses) could request challenges, and provided its own procedures to add
expediency to the regime.” The State transcribed the corresponding provisions, which are
not the subject matter of the analysis in the instant case given that they were not applied.
190. Based on the foregoing, the Court concludes that the constant presentation of
abstentions affected the seriousness of the conduct of the domestic criminal proceedings.
And that those abstentions affected the processing of this case due to the delays brought
as a result of the judicial system’s minimal control, which, as a consequence of the
legislation applied, left to the judges’ discretion the referral of abstentions to superior
authorities for consultation as to their legality, all of this while threatened with a penalty if
the abstentions were declared legal.
191. Therefore, the Court deems that, regarding this aspect, there was not only a violation
of Article 8(1) of the Convention but also of Article 2 therein, since the corresponding
legislation hindered the correct conduct of the proceeding.
B.4.
About the classification of forced disappearance
192. The Commission alleged that at the moment of the facts of the case, the crime of
forced disappearance was not classified under Bolivian law. [The Commission] mentioned
that the State ratified the Inter-American Convention on Forced Disappearance on May 5,
1999, but that it classified this crime recently, on January 18, 2006. Therefore, it
considered that between May 5, 1999, and January 18, 2006, the State failed to comply
with the obligation established in Article III of the Convention on Forced Disappearance, in
relation to Article IV therein.
193. The Court has already referred to the general obligation of the States to adapt its
domestic law to the norms of the American Convention. This is also applicable when
dealing with the enactment of the Convention on Forced Disappearance, since it derives
from the rule of customary law according to which a State, who has entered into an
international covenant, must include within its domestic law the necessary changes to
ensure its compliance with the obligations undertaken.
194. In the judgment of the case of Ticona Estrada v. Bolivia, the Tribunal already
declared the State’s non-compliance with the obligations established in Articles 1.d) and III
of the Convention on Forced Disappearance, and in Article 2 of the American Convention,
since it was not until January 18, 2006, that Bolivia incorporated the crime of forced
disappearance into its legislation. In this respect, the Court considers that a new
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