above-mentioned international law, since the crime in our domestic law is restrictive.”113 In the same report,
the Prosecutor stated that it is appropriate to propose an amendment to the legislation. In addition, he
pointed out that the element of “duly proven disappearance” established in Article 320 of the Penal Code
gives rise to judicial interpretations that could lead to impunity.114
152.
In the case of Anzualdo Castro and, subsequently, in the case of Osorio Rivera, the Court emphasized
that the text of Article 320 of the Peruvian Penal Code had not been amended, and concluded that “as long as
[the article] is not correctly adapted to international standards, the State will continue to be in
noncompliance with Articles 2 of the American Convention and III of the Inter-American Convention on the
Forced Disappearance of Persons.”115 In the same vein, in its resolution of July 5, 2011 on supervision of
compliance with the judgment issued in the case of Gómez Palomino, the Inter-American Court indicated that
“the State has not presented information on specific action taken to reform its criminal legislation according
to the terms stated in the judgment.”116
153.
Since, to date, the Peruvian State has not amended the criminal classification of forced disappearance
as stipulated in Article 320 of its Penal Code, through the mechanisms provided in its legal system, the IACHR
considers that it is still not in compliance with the obligation to adopt the necessary legislative measures, in
accordance with Article 2 of the American Convention and III of the CIDFP.
D.
Right to humane treatment of members of the families of victims (Articles 5.1, in conjunction
with 1.1 of the American Convention on Human Rights
154.
The Commission and the have found in numerous cases that the family members of victims of human
rights violations can in turn be victims as well.117 More specifically, in cases involving the forced
disappearance of persons, it is possible to understand that the violation of the right to physical and moral
integrity of the family of a victim is a direct consequence of this phenomenon, and that forced disappearance
generates severe suffering by the very fact that it is aggravated by the constant refusal of state authorities to
provide information regarding the whereabouts of the victim or to open an effective investigation to shed
light on what happened.118 Thus the Court has come to consider the continuing deprivation of the truth
regarding the fate of a disappeared person as a form of cruel and inhumane treatment for the close family
members.119
155.
In cases of a forced disappearance, the State has the obligation to guarantee the right to humane
treatment of the families as well, through effective investigations. Furthermore, the absence of effective
remedies has been considered by the Court as a source of suffering and additional anguish for victims and
their families.120 In the present case, as established in the section on proven facts, the members of the family
113 Annex 1. Report N° 004-2011-FSPNC-MP-FN of 4 April 2011, including as an annex the State’s memorandum No. 7-5M/785 of 5 December 2011.
114Annex1. Report N° 004-2011-FSPNC-MP-FN of 4 April 2011, including as an annex the State’s memorandum No. 7-5-M/785
of 5 December 2011.
115 Inter-American Court, Case of Anzualdo Castro Vs. Peru, Judgment of 22 September 2009, Series C No. 202, para. 167, and
Inter-American Court, Case of Osorio Rivera and family Vs. Peru, Judgment of 26 November 2013, Series C No.274, para. 212.
116
Inter-American Court, Decision on supervision and compliance with judgment in the Case of Gómez Palomino, 5 July 2011,
117
Inter-American Court, Case of Bámaca Velásquez Vs. Guatemala. Merits. Judgment of 25 November 2000. Series C No. 70,
para. 37.
para. 160.
118 Inter-American Court, Case of Anzualdo Castro Vs. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of
22 September 2009. Series C No. 202, para. 105.
119 Inter-American Court, Case of Radilla Pacheco Vs. México. Preliminary Objections, Merits, Reparations and Costs. Judgment
of 23 November 2009. Series C No. 209, para. 166.
120 Inter-American Court., Case of Anzualdo Castro Vs. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of
22 de September de 2009. Series C No. 202, para. 113.
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