58
requested legal reforms on the subject of forced disappearance to rectify the existing
definitions. In their final arguments, they alleged that although in Guatemala the crime of
forced disappearance is codified, said criminal codification is not applied by those in charge
of the administration of justice given that there have been few cases that have been
submitted, and that conforming to that established by this Tribunal “while this criminal norm
is not properly adequate, the State will continue to not comply with Article 2 of the
American Convention and Article III of the ICFDP.”
212. The State did not make a specific declaration regarding the alleged violation of
Article 2 of the Convention.
213. It is necessary to mention that the general duty of the State to adapt its internal law
to the rules of the American Convention in order to guarantee the rights consecrated in it,
established in Article 2, implies the adoption of measures in two ways. On the one hand,
the suppression of the norms and practices of any nature that entail violations of the
guarantees foreseen in the Convention. On the other hand, the expedition of the norms and
the development of legal practices for the effective observance of said guarantees.233
214. In this regard, the Court has noted that the crime of forced disappearance was
codified in the Penal Code of Guatemala in 1996. Also, this Tribunal observes that the
report raised by COPREDEH was for the crime of forced disappearance. It notes also that
the internal criminal process is now in its initial stages of investigation, to which, of the
elements offered, it is not possible to establish the existence of a practice of lack of
application of the criminal codification referred to by the judicial authorities in the present
case, as was alleged by the representatives. Therefore, the Court considers that it lacks
sufficient elements to make a ruling regarding the existence of the obstacles alleged by the
representatives, and therefore, to declare a violation of the guarantees foreseen in Article 2
of the American Convention.
215. Regarding the alleged lack of fulfillment of Article III of the ICFDP on the part of the
representatives, the Court refers to that resolved in the present Judgment, in the sense that
it deals with an extemporaneous request (supra para. 120).
XI
ARTILCE 5(1) (THE RIGHT TO HUMANE TREATMENT [PERSONAL INTEGRITY]) OF
THE AMERICAN CONVENTION, IN RELATION WITH ARTICLES 1(1) (OBLIGATION
TO RESPECT RIGHTS) OF THE SAME
216. In consideration of the acknowledgement by the State regarding the facts and the
recognition of responsibility for the violation of Article 5 of the Convention and of the
violations declared prior, the Court will analyze in this chapter the alleged physical and
psychological affects suffered by the Chitay Rodriguez siblings.
217. The Commission founded said violation in the fact that when Mr. Chitay Nech and
his next of kin fled to Guatemala City, “they were obligated to radically change their
lifestyle, with which did not imply the end of danger and persecutions, and with them, the
fear and consequential anguish.”
Also, the Commission signaled that the lack of
233
Cf. Case Castillo Petruzzi et. al. V. Perú. Merits, Reparations and Costs. Judgment of 30 of May of 1999.
Series C No. 57, para. 207; Case Reverón Trujillo V. Venezuela, supra note 39, para. 60, and Case of the Dos Erres
Massacre v. Guatemala, supra note 12, para. 122.
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