103
international human rights obligations of Brazil derived from the treaties of
which it is a Party.
ii. Codification of the crime of enforced disappearance
284. The Commission requested the Court to order the State to codify the
crime of enforced disappearance in its domestic legal code, pursuant to the
elements outlined by related international instruments.
285. The representatives expressed that the State must codify the crime of
enforced disappearance, considering it to be continuous or permanent, until the
whereabouts of the victim are determined. The appropriate codification of
enforced disappearance must include: a) the elimination, ab initio, of legal
institutions such as amnesties or statute of limitations; b) the elimination of the
military justice jurisdiction; c) the investigation of all of the actions of the
implicated persons, and d) the determination of a punishment proportional to
the gravity of the crime. Regarding the Draft Bill No. 4038/08, that codifies the
crime of enforced disappearance of persons, they noted that it calls for the
incorporation of the Rome Statute into the domestic law of Brazil, which only
provides for the crime of enforced disappearance of persons within the context
of crimes against humanity. Regarding the Draft Bill No. No. 301/07, which
intends to define conducts that constitute crimes in violation of international
humanitarian law and to establish norms for the legal cooperation of the
International Criminal Court, they considered that it also is not appropriate,
among other reasons, given that it also describes the criminal conduct within a
generalized or systematic attack against the civilian population. Therefore, they
requested the Court to order the State to codify the crime of enforced
disappearance of persons in its legal system, pursuant to the parameters of the
Inter-American System.
286. The State recognized the importance of the codification of the crime of
enforced disappearance and indicated that the absence of said codification does
not prevent it from being subsumed under another crime. Nevertheless, the
codification of the crime of enforced disappearance in the Brazilian domestic
legal code is being examined by the Legislative Power, by means of two Draft
Bills: a) No. 4.038/08, presented in September of 2008, wherein its Article 33
defines the crime against humanity of enforced disappearance, b) No. 301/07,
wherein its Article 11 also codifies enforced disappearance. Finally, the State
noted that Legislative Decree No. 116 of 2008, is currently being processed
before the National Congress, which ratifies the Inter-American Convention on
Forced Disappearance of Persons. It informed that the abovementioned
Legislative Decree has been approved by the Chamber of Representatives and is
currently being processed by the Commission of Foreign Relations of the Federal
Senate.
287. In accordance with the foregoing, the Court urges the State to continue
with the legislative processing and to adopt, in a reasonable period of time, all
the measures necessary to ratify the Inter-American Convention on the
Prevention and Punishment of Forced Disappearance of Persons. On the other
hand, pursuant to the obligation enshrined in Article 2 of the American
Convention, Brazil must adopt the necessary measures to codify the crime of
enforced disappearance of persons in conformity with the Inter-American
standards. This obligation links all the State powers and organs together. In this
sense, as this Court has indicated previously,390 the State should not limit itself
390
Cf. Case of Radilla Pacheco, supra note 24, para. 344.
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