considered that article 150 of the Panamanian Criminal Code was contrary to the Convention,
because “it appears to be applicable only when there is a ‘refusal to provide’ information on the
whereabouts of someone whose deprivation of liberty is already a fact and it is known with
certainty that someone has truly been deprived of their liberty.” 347 In this regard, the Court
considered that “[t]his definition of the offense does not contemplate the possibility of a situation in
which it is not known with certainty whether the disappeared person is or was detained: in other
words, it does not include situations in which it is not acknowledged that someone has been
deprived of their liberty, even when the whereabouts of the said persons is unknown. It is precisely
that failure to acknowledge the deprivation of liberty which, on many occasions, endangers other
fundamental rights of the disappeared person.” 348
211. Regarding the applicability of article 320 of the Criminal Code to the specific case, the Court
notes that this was one of the definitions of an offense that was considered by the Fourth
Supraprovincial Court and by the National Criminal Chamber during the criminal proceedings held
in the ordinary criminal jurisdiction starting in 2004, and the definition of the offense for which
Lieutenant Tello Delgado was prosecuted and of which he was acquitted in the judgment of
December 17, 2008 (supra para. 95). The latter was annulled based on inappropriate assessment
of the evidence on June 24, 2010 (supra para. 96). During the new trial that culminated in the
judgment delivered in 2011, the accused was also acquitted of the offense defined in article 320 of
the Criminal Code (supra para. 97). However, the Court considers that no specific relationship has
been revealed between the lack of effectiveness, diligence and thoroughness in the investigations
and the failure to adapt the definition of the offense of enforced disappearance to the parameters
of the Convention. Moreover, the representatives, in their motions and arguments brief, indicated
that “the failure to adapt article 320 of the Peruvian Criminal Code to international standards has
not had consequences in the processing of the investigation.” In addition, none of the rulings
reveal that the prosecutors reversed the burden of proof onto the complainants owing to this
incorrect definition. Thus, the Court does not observe, and the representative do not maintain, that
in the case sub judice this incorrect definition of the offense has been a specific factor in
obstructing the implementation of the investigations and the proceedings opened into the enforced
disappearance of Jeremías Osorio Rivera.
212. Nevertheless, the Court recalls that, while article 320 of the Criminal Code is not adapted
correctly to international standards, the State continues to fail to comply with Articles 2 of the
American Convention and III of the Inter-American Convention on Forced Disappearance of
Persons. 349
B.5. The amnesty laws
213. With regard to the general obligation of the States to adapt their domestic law to the
Convention, contained in Article 2 of the American Convention, 350 for the effects of this dispute, it
347
Case of Heliodoro Portugal v. Panama, supra, para. 199.
348
Case of Heliodoro Portugal v. Panama, supra, para. 199.
349
Cf. Case of Gómez Palomino v. Peru. Monitoring compliance with judgment. Order issued by the Inter-American
Court on July 1, 2009, considering paragraph 32; Case of Gómez Palomino v. Peru. Monitoring compliance with judgment.
Order issued by the Inter-American Court on July 5, 2011, considering paragraphs 36 and 37, and Case of Anzualdo Castro
v. Peru. Monitoring compliance with judgment. Order issued by the Inter-American Court on August 21, 2013, considering
paragraphs 23 to 26.
350
Article 2 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.”
77
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