Considerations of the Court
94.
One of the reparations requested by the representatives of the victim and his
next of kin and by the Commission refers to legislative reforms. In particular, they
request the Court to declare that Bolivia should reform its Criminal Code in order to
define the forced disappearance of persons as an offense, in accordance with the
international treaties ratified by the State.
95.
The Court notes that Bolivia ratified the Inter-American Convention on the
Forced Disappearance of Persons, Article III of which establishes that:
[t]he 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 should be deemed continuous and
permanent as long as the fate or whereabouts of the victim has not been determined.
96.
Since it has not defined the forced disappearance of persons as an offense in
its domestic legislation, Bolivia has not only failed to comply with the abovementioned instrument, but also with Article 2 of the American Convention. In this
respect, the Court has indicated that:
[…] the general obligations of the State, established in Article 2 of the
Convention, include the adoption of measures to suppress laws and
practices of any kind that imply a violation of the guarantees
established in the Convention, and also the adoption of laws and the
implementation of practices leading to the effective observance of the
said guarantees.
[…]
In the law of nations, customary law establishes that a State which
has ratified a human rights treaty must introduce the necessary
modifications to its domestic law to ensure proper compliance with the
obligations it has assumed. This law is universally accepted, and is
supported by jurisprudence. The American Convention establishes the
general obligation of each State Party to adapt its domestic law to the
provisions of this Convention, in order to guarantee the rights that it
embodies. This general obligation of the State Party implies that the
measures of domestic law must be effective (the principle of effet
utile). This means that the State must adopt all measures so that the
provisions of the Convention are effectively fulfilled in its domestic
legal system, as Article 2 of the Convention requires. Such measures
are only effective when the State adjusts its actions to the
Convention’s rules on protection58.
97.
It is also important to place on record that the failure to define the forced
disappearance of persons as an offense has prevented the criminal prosecution in
58
cf. “The Last Temptation of Christ” case (Olmedo Bustos et al.). Judgment of February 5, 2001.
Series C No. 73, paras. 85 and 87.