30
102. In this regard, in the case of Trujillo Oroza v. Bolivia, the Court expressed in
the Judgment on Reparations of February 27, 2002, that Bolivia had to define the
crime of forced disappearance in its Criminal Code.
103. Within the framework of the procedure to monitor compliance with the
Judgment in the case of Trujillo Oroza, the State informed that it had defined the
crime of forced disappearance of persons as an offense, in accordance with Operative
Paragraph Two of said Judgment. The Court verified that the State had effectively
classified the crime of forced disappearance of people in Chapter X of the Criminal
Code,89 by means of the enactment of National Act Nº 3326 of January 18, 2006.
Pursuant to the foregoing, by means of the Order to Monitor Compliance with
Judgment of November 21, 2007, this Tribunal declared that the State complied with
that obligation.90
104. In the instant case, even though there was no legal definition of forced
disappearance in the Bolivian law at the moment the proceedings were initiated in
the year 1983, the Court notes that there was specific obligation to legally define the
crime of forced disappearance at that time, in accordance with the State obligations
undertaken on the basis of having ratified the American Convention.
In light of
Article 2 of the Convention, this Tribunal considers that from the moment the
proceedings were initiated, the Bolivian legislation provided criminal rules leading to
the effective observance of the guarantees established in the Convention with
respect to the individual rights to life, humane treatment and personal liberty,
according to the provisions of the Criminal Code in force in the year 1983.91
Therefore, the Court considers that, in the instant case, it has not been proved that
the lack of legal definition of the autonomous crime of forced disappearance has
hindered the effective development of the criminal procedure.
105.
Moreover, this Tribunal observes that the State ratified the Convention on
Forced Disappearance of Persons on May 5, 1999, which entered into force on June
5, 1999, in Bolivia. It is as of this moment onwards that the State had the obligation
to define the crime of forced disappearance of persons as an offense. Considering the
nature of such obligation, the State should have implemented it within a reasonable
time.92 In this regard, it was not until January 18, 2006, that Bolivia incorporated
such crime into its legislation. It is worth mentioning that, at the time the case was
brought before the Inter-American system, that is, on August 9, 2004, the noncompliance was still being observed, therefore this Court asserts that it is competent
to rule over such matter. Nevertheless, at the moment the case was brought to this
Court’s attention, the State had already corrected said non-compliance by
establishing the crime of forced disappearance in its legislation. As a consequence,
89
“Section 292 bis (Forced Disappearance of Persons). He who, with authorization, support or
acquiescence from some state agency, deprives the liberty of one or more persons and deliberately, hides
and denies information on the recognition of the deprivation of liberty or whereabouts of the person,
preventing in this way the exercise of recourses and procedural guarantees, shall be punished to five to
ten years of imprisonment.
If, as a consequence of that act, the victim suffers from serious physical or mental damage, the
punishment shall be fifteen to twenty years of imprisonment.
If the perpetrator were a public official, the maximum of the penalty shall be increased to one -thirdIf, as a consequence of the events, the victim dies, the punishment shall be thirty years of imprisonment."
90
Cf. Case of Trujillo Oroza v. Bolivia. Monitor Compliance with Judgment. Order of the InterAmerican Court of Human Rights of November 21, 2007, considering clauses 8 and 9
91
Cf. Criminal Code of Bolivia, Title VIII "Rights against life and physical integrity", sections 251 to
281 and Title X "Crimes against liberty", sections 291 to 307.
92
Cf. Case of Heliodoro Portugal v. Panamá, supra note 13, para. 187.