the issuance of an arrest warrant in November 2008 and the fact that the State had
been aware of his departure from the country since at least 2007, 43 the Bolivian
authorities only activated INTERPOL and began diplomatic procedures for his
extradition from Colombia ten years later, in 2018. 44 In 2020, a "petition with a
formal request" for extradition was issued to the competent authority in Colombia,
which led to the capture of E.G.A for extradition purposes in February 2022. However,
in September 2022, the Colombian Supreme Court of Justice annulled the arrest
warrant and ordered his immediate release, considering that the criminal action had
expired according to Colombian legislation. 45 Thus, as the Court noted, more than
20 years have passed since the sexual violence suffered by Ms. Losada, “there is no
final judgment of conviction or acquittal, since the request for extradition from
Colombia to Bolivia to appear in court has been denied in the third trial.” 46
17. The analysis of the facts of this case, presented in the judgment and summarized
above, demonstrates, as will be developed later, the centrality of issues related to
the classification of sexual crimes in the Bolivian Criminal Code in violation of Ms.
Losada’s human rights during the domestic investigative and judicial procedures - in
particular, due to the absence of effective introduction of the element of consent as
a characteristic of the offense of "rape" (combined with the possibility of framing
sexual acts under the offense of " statutory rape") and the disregard of the
seriousness of the incestuous rape suffered by the victim. However, before
continuing with the discussion of these two points, I consider it necessary to present
some reflections on the complex interaction between International Human Rights
Law and Criminal Law.
II.
On the imperative of adapting domestic regulations to international
standards in Human Rights and their complex interaction with Criminal
Law
18. The interaction between International Human Rights Law and Criminal Law is the
subject of recurring debate within the IHR System. 47 One of its manifestations occurs
precisely in the context of reparatory measures in which the Court orders some
change in the domestic law of the States as a guarantee of non-repetition. Taking
into account that this opinion is based on two proposals to modify the Bolivian
Criminal Code, I believe it is necessary to first discuss the foundations of the Court's
prerogative to demand the adaptation of criminal offenses in the countries under its
jurisdiction (II.a) and then, the complex relationship between Criminal Law and
Human Rights that is evident in this debate (II.b).
a. On the standards adopted by the Court to demand the adaptation
of criminal offenses regarding reparation
19. Since its first ruling on the merits, the Court has highlighted the existence of
obligations to prevent, investigate and punish violations of human rights, which
derive from the duty of "guarantee" of the States, crystallized in Article 1(1) of the
Ibid., para. 123.
Ibid., para.72.
45
Ibid., para. 76.
46
Ibid., para. 130.
47
In my reasoned opinion in Moya Chacón v. Costa Rica (2022) I was able to explore, specifically, the
interaction between criminal law and the right to freedom of expression. Below, I expand my considerations
on international human rights law in general. Cf. Case of Moya Chacón v. Costa Rica. Preliminary Objections,
Merits, Reparations and Costs. Judgment of May 23, 2022. Series C No. 451, concurring opinion of Judge
Rodrigo Mudrovitsch, para. 8-43.
43
44
6