6
intellectual perpetrator (ordering) or as physical perpetrator, i.e. the actual
wrongdoing (carrying out). These acts (quid of the omissions?) are oriented to a
result expressly required by the crime definition: the “duly verified” disappearance of
the victim.
26.
Evidently, mere deprivation of freedom is not enough ―as required by the
Convention, according to a wide protection scheme― but “disappearance” is also
required, an ambiguous expression that is subject to various constructions.
Furthermore, said “disappearance” must be “duly verified.” This requirement raises
new difficult questions. Is the goal to have the applicant prove that disappearance,
which is inadmissible, as alleged by some detractors of that principle? Is there a
reference to the fact that occurrence of the crime can only be established and the
perpetrator punished when disappearance has been “duly proven” – through judicial
proceedings, where evidence is examined? Upon examining the wording used in
Article 320 and its possible interpretations and consequences one should analyze if
attempt, as a conduct, is not subject to criminal prosecution. Indeed, the definition
of the crime requires the occurrence of an instance of disappearance and that said
disappearance be duly proven. All in all, there is ample difference between that
concept in domestic legislation and the description contained in the Inter-American
Convention, as ratified by the State.
27.
As regards the perpetrator, Article 320 refers to a specific characteristic: the
person depriving the victim of his freedom is "a public official or servant.” In
principle, the phrase “agents of the State” ―as used in the Convention― is wider
than “public official or servant,” except as otherwise set forth in domestic rules
aimed at explaining these concepts. Of course, incrimination will not apply ―at least
under this legal category, whose enforcement is required by the international
system― to individuals who are not public officials or servants, thus considerably
restricting the description contained in Article II of the Convention. The judgment of
the Court indicates that the domestic criminal standard restricts the category of
wrongdoing and disregards other forms of criminal involvement. Considered as a
whole, the problem is even greater: the crime definition excludes every from
wrongdoing or criminal involvement in forced disappearance any individual not falling
under the category of public official or servant.
28.
Obviously, the domestic crime definition does not cover other elements of
the legal definition of the crime set forth in the Convention, as mentioned above: i.e.
absence of information or refusal to acknowledge that deprivation or to give
information on the whereabouts of the victim. The consequence of that omission may
be disadvantageous for the official and, therefore, result in the imposing of a more
severe criminal punishment that the one established for the act of forced
disappearance. Indeed, the crime would be perfected once the acts that result in said
disappearance have been effectively performed, irrespective of the subsequent
conduct of the official as regards information, explanations or acknowledgment.
29.
During the regular session in which judgment was rendered in the Case of
Gómez-Palomino v. Peru, the Court heard and decided –after the State
acknowledged its liability- the Case of Blanco-Romero et al. v. Venezuela. In these
proceedings, domestic legislation on forced disappearance of persons was also taken
into account. In that regard, upon ordering reparations, the Court found that
domestic legislation was not consistent with the Inter-American Convention on the
matter and decided that the State should review legislation to guarantee compliance
therewith.