89
remain in complete impunity.” The Commission did not present arguments in this sense.
The State, on its part, indicated that “[i]t understands and shares the position of the
[representatives], in the sense that there are still matters that deserve to be examined and
that shall be reformed in order to achieve a greater serving of justice. However, it has been
proven that Mexico has effective laws in force that help to serve justice in matters of all
types, including, of course, criminal ones.” In this regard, it indicated that the crime of
forced disappearance of persons “is punished by the Federal Criminal Code” since June 1,
2001. Therefore, it requested that the Court declare “[t]hat a conviction for violations to
Article 2 of the Convention is not admissible.”
316. In the previous chapter it was established that the only mention of an alleged
responsible made by the Special Prosecutors’ Office was for the crime of “illegal deprivation
of liberty in its modality of plagiarism or kidnapping” and not for the crime of forced
disappearance of persons in force in Mexico (supra para. 238). This decision has had
negative consequences on the effectiveness, diligence, and exhaustiveness of the
investigations and on the determination of the corresponding individual responsibilities
(supra paras. 238 through 240). In this regard, the Tribunal recalls that, according to that
indicated by the State, the application of the legal classification of forced disappearance of
persons in this case was not possible since it “requires that the active subject of the crime
be a public official, but when the legal classification came into force the defendant Francisco
Quiros [sic] Hermosillo went into retirement.” (supra para. 236)
317. The Court has repeatedly established that the States Parties to the American
Convention have the general duty to adjust their domestic legislation to the provisions of
that treaty in order to guarantee the rights enshrined in it (supra para. 144).306 In the case
of the forced disappearance of persons, this obligation is corresponded with Article I d) of
the CIDFP, which stipulates that the State Parties to the same undertake to take legislative,
administrative, judicial, and any other measures necessary to comply with the commitments
undertaken by them.
318. Specifically, the obligation to adopt domestic measures implies that the States shall
define the crime of forced disappearance, and Article III of the CIDFP is expressed in this
sense. The Court has established that the description of the crime of forced disappearance
of persons shall be done taking into consideration Article II of the mentioned Convention,
which establishes a minimum standard regarding its correct legal classification within the
domestic legal system.307 The Article in question stipulates that:
For the purposes of this Convention, forced disappearance is considered to be the act of depriving
a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state
or by persons or groups of persons acting with the authorization, support, or acquiescence of the
state, followed by an absence of information or a refusal to acknowledge that deprivation of
freedom or to give information on the whereabouts of that person, thereby impeding his or her
recourse to the applicable legal remedies and procedural guarantees.
319. The Court warns that the crime of forced disappearance is punished in Article 215-A
of the Federal Criminal Code since the year 2001, in the following terms:
306
Cf. Case of “The Last Temptation of Christ” (Olmedo Bustos et al.) v. Chile. Merits, Reparations, and
Costs. Judgment of February 5, 2001. Series C No. 73, para. 87; Case of Heliodoro Portugal v. Panama, supra note
24, para. 179, and Case of Anzualdo Castro v. Peru, supra note 44, para. 161.
307
Cf. Case of Heliodoro Portugal v. Panama, supra note 24, para. 189.
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