29
Estrada.
VIII
ARTICLE (DOMESTIC LEGAL EFFECTS) 86 OF THE AMERICAN CONVENTION AND
I AND III87 OF THE INTER-AMERICAN CONVENTION
ON FORCED DISAPPEARANCE OF PERSONS
99.
The Commission alleged that at the moment of the facts of the case, the
crime of forced disappearance of people was not established in the Bolivian law. Said
legal definition was made on January 18, 2006, by means of Law Nº 3326 that
incorporated the legal precept of forced disappearance in the Criminal Code. The
Commission further alleges that even when the legal definition means a progress in
the development of laws related to the principles established in human rights
international treaties ratified by the State, the facts of this case occured before the
efforts made by the State and therefore, the State failed to comply with the
obligation undertaken under Article 2 of the American Convention and Articles I and
III of the IACFDP. The representative fully agreed with the argument put forward by
the Commission.
100. Moreover, the State acknowledged its international responsibility for the noncompliance of Articles I and III of the IACFDP. However, in the brief of response to
the petition, it failed to mention the acquiescence to Article 2 of the American
Convention. Afterwards, in the final written arguments, the State expressed that
“important legislative progress has been made in relation to forced disappearance of
persons, therefore, it did not include Article 2 in the context of that acquiescence
(supra para. 17).
101. The Court has stipulated, regarding the general obligation of every State
Party to adapt its domestic laws to the provisions of that Convention, that “[u]nder
the law of nations, a customary law prescribes that a State that has concluded an
international agreement must introduce into its domestic laws whatever changes are
needed to ensure execution of the obligations it has undertaken.”88
86
Article 2 of the Convention establishes that:
[W]here the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by
legislative or other provisions, the States Parties undertake to adopt, in accordance with their
constitutional processes and the provisions of this Convention, such legislative or other measures as may
be necessary to give effect to those rights or freedoms.
87
Article I(d) of the IACFDP, in its pertinent parts, establishes: The State Parties to this Convention
undertake:
d) To take legislative, administrative, judicial, and any other measures necessary to comply with the
commitments undertaken in this Convention.
Furthermore, Article III of the IACFDP, in its pertinent parts, provides:
The States Parties undertake to adopt, in accordance with their constitutional procedures, the legislative
measures that may be needed to define the forced disappearance of persons as an offense and to impose
an appropriate punishment commensurate with its extreme gravity. This offense shall be deemed
continuous or permanent as long as the fate or whereabouts of the victim has not been determined.
The States Parties may establish mitigating circumstances for persons who have participated in acts
constituting forced disappearance when they help to cause the victim to reappear alive or provide
information that sheds light on the forced disappearance of a person.
88
Cf. Case of Garrido and Baigorria v. Argentina. Reparations and Costs. Judgment of August 27,
1998. Series C Nº 39, para. 68; Case of Castañeda Gutman v. Mexico, supra note 17, para. 132 and Case
of Heliodoro Portugal v. Panamá, supra note 13, para. 179.