11
40.
That, in light of this paragraph, the Court finds that the decision rendered by the
Civil Division (supra Having Seen No. 12) regarding the inapplicability of the crime of forced
disappearance of persons collides with the duty of the State to investigate, identify and
eventually punish those responsible for the illegal acts committed against Trujillo-Oroza,
under the provisions of operative paragraph three of the Judgment on reparations and costs
(supra Having Seen No. 2.)
c) No time bar on the criminal actions germane to the events consisting of the
forced disappearance of Trujillo-Oroza
41.
With respect to the application of the statute of limitations to the criminal actions
involved in this case, the State informed that the first instance judgment declared that as
the crimes of ill-treatment and torture, criminal association, criminal organization, murder
and crime concealment fail to have a permanent nature, they should be considered instant
crimes. In this sense, as “the statutory time frame of eight years to prosecute the five
instant crimes described above” had been surpassed and that “there was no evidence
showing that the crime of unlawful deprivation of freedom, [which] is a permanent crime,
had ceased,” the case only proceeded for this crime. Therefore, according to said ruling,
defendants were only convicted of the crime of unlawful deprivation of freedom and were
acquitted of the crimes of ill-treatment and torture, criminal association, criminal
organization, murder and crime concealment. During the private hearing (supra Having
Seen clause No. 11,) the State confirmed that in the first instance judgment it was possible
to observe that several crimes had been applied, and that it showed “[a] lack of consistency
of the overall evaluation of the events with the crimes prescribed in Bolivia.” However, it
called the attention to the fact that during the then pending appeal proceedings, allegations
were only made on “time bar issues germane to the events, but not to the application of the
crime of “forced disappearance.” Accordingly, those were the grounds that should have
been addressed by the second instance judge.
42.
That the representatives have expressed discontent with the time bar declared in the
first instance judgment on the crimes of ill-treatment and tortures, criminal association,
criminal organization, murder and crime concealment and with the fact that, as a result, the
“only crime the original six defendants, currently four surviving defendants, c[ould] be
charged with [was] unlawful deprivation of freedom, of which they [had been convicted] to
2 years and 8 months.” The representatives highlighted that the State declared a time bar
on crimes against humanity such as torture.
43.
During the hearing (supra Having Seen clause No. 11,) the Inter-American
Commission alleged “denial of justice,” because the conviction was solely of the crime of
unlawful deprivation of freedom, while the remaining crimes were declared time-barred.
Moreover, in a subsequent communication (supra Having Seen No. 13,) it restated “that
upon grave violations of human rights, including forced disappearance of persons, the use of
defenses to liability such as […] statute of limitations, is incompatible with the American
Convention[; …] the victim endured forced disappearance, not a regular unlawful
deprivation of freedom.”
44.
That the Court notes that in the second instance judgment of September 28, 2009
(supra Having Seen clause No. 12,) the Civil Division primarily declared that the case was
based on “the accusation of the crimes of unlawful deprivation of freedom, ill-treatment and
torture, criminal association, criminal organization, murder and crime concealment and
adding and abetting,” which were solved separately. Accordingly, the judgment argues that
“ill-treatment and torture are instant crimes [and] that, under this current legal doctrine,