12
35.
The Commission expressed its regret that the bill to fulfill this reparation measure
had been discontinued. It also observed, on the one hand, that even though the State
provided information on this proposed amendment, it did not do so with respect to the
reasons behind the decision to discontinue it to identify them and try to overcome them by
using available constitutional mechanisms. On the other hand, the State has not made
mention of any steps it intends to take in light of this, such as the presentation of new bill
or how a potential bill would comply with the three points mandated by the Court.
Furthermore, the Commission expressed concern regarding the Supreme Court’s Plenary
Agreement regarding forced disappearance “as a binding legal doctrine for all judges
nationwide,” which “ignores international standards.” Particularly, the Commission noted the
Inter-American Court’s holding in the Case of Radilla Pacheco, which provides that so long
as the fate or whereabouts of the victim are unknown, forced disappearance remains a
consideration invariably independent of changes in the perpetrator’s status as a “public
servant.” Despite this, the Commission recalled that what this Court ordered was a
legislative alignment, for which the presentation of a new bill is a fundamental component.
Thus, the Commission is waiting for the State to utilize all legal and constitutional methods
to promptly comply with this reparation measure as soon as possible.
36.
In order to evaluate the status of compliance with this obligation, the Court finds
that, with the exception of the representatives’ submissions on Bill No. 1707/2007-CR of
October 11, 2007 and Plenary Agreement No. 9-2009/CJ-116 of November 13, 2009
approved by the Criminal and Transitional Chambers of the Peruvian Supreme Court,
despite two requests made (supra Having Seen 4), it does not currently have updated
information on this issue because the State has only responded that “there are no more
specific updates to report.” The Court finds in this respect that neither the Plenary
Agreement or the bill satisfy the obligation contained in this reparation measures to
effectively reform domestic criminal law. Accordingly, the Court reminds the parties that “so
long as the fate or whereabouts of the victim are unknown, forced disappearance continues
to be a consideration invariably independent of changes in the perpetrator's 'public servant'
status.”21
37.
Ultimately, the State has not provided information as to the specific actions it intends
to adopt to reform its criminal law on the manner indicated in the Judgment.22 Because of
this, the Tribunal regards this matter as pending compliance and, since this reparation
measure should be fulfilled within a reasonable time, the State should take any steps
necessary to promptly and effectively comply with this reparation measure. The Tribunal
thus finds it pertinent to remind the parties that the treaty obligations of States Parties bind
all their powers and bodies (supra Considering Clause 4). Consequently, the State should
continue giving detailed and comprehensive information on the measures taken to comply
with this obligation.
state offical, perpetrator of the disappearance, retains the status of public official. If this is not the case, it would
not be possible to criminally prosecute this class of crime.
21
Cf. Case of Radilla Pacheco V. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of
November 23, 2009. Series C No. 209, para. 240.
22
Cf. Case of Gómez Palomino v. Peru. on Merits, Reparations and Costs, supra note 9, paras. 91 to 109.