SOME RECENT CRITERIA FROM THE INTER-AMERICAN HUMAN RIGHTS COURT (1998)
Sergio GARCÍA RAMÍREZ^*

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SUMMARY
I. Introduction. II. Evidence. III. Exhausting domestic remedies. IV. Suitability and effectiveness of the remedy. V. Legal capacity and standing. VI. Defense of the State before the Commission. VII. Stipulating the violation in the Commission report. VIII. Modification of the complaint. IX. Congruence in the claims lodged by the Commission. X. Illicit conduct of alleged victims. XI. National sovereignty and international duty. XII. Reparation, in general terms. XIII. The inherent right to compensation and its trasmission by succession. XIV. Compensatory or punishable nature of reparation. XV. Material damages:future earnings. XVI. Social damages due to the loss of human life. XVII. Beneficiaries of the compensation. XVIII. Costs. XIX. The obligation to act in a domestic sphere: reform of norms, investigation and punishment of the individuals responsible. XX. Life plan.

I. INTRODUCTION

The Inter-American Court of Human Rights has subscribed to relevant criteria in various resolutions issued in 1998. With these resolutions, it broadened or reiterated previously adopted theses, or addressed new issues. The importance of this international court’s jurisprudence goes without saying, taking into account the role it plays in the formation of international law¹ –and not forgetting the type of "reception" it is given by different juridical cultures-² as well as the recent recognition on Mexico’s part of the Inter-American Court of Human Rights’ legal jurisdiction.³

This article is for the purpose of presenting and commenting on these criteria, with the characteristics and limitations imposed by the circumstance that the author is a judge of this very Court, and in that capacity has participated in the resolutions under inquiry, as part of the majority that approved them or as one who cast a concurrent opinion.

In examining these criteria, the case in dispute is indicated for each corresponding ruling, as well as the make-up of the Court, the date of the ruling and its nature: preliminary objections,⁴ merits and redress;⁵ there are occasionally rulings of a different nature, such as filing evidence. In the first reference to a case –or subsequent reference— the subject of the controversy is briefly explained in a footnote.

When the court expressly invokes doctrinal points of view or legal precedents, these are included in the footnotes to give the reader a proper perspective of the reasons the court considered to issue its decision.

II. EVIDENCE

In essence, the process is ample opportunity for probatory evidence concerning certain claims and specific pleas and defense. Therefore, the result of the process largely depends on the evidence, which gains importance when it is used to obtain the so-called real truth and does not settle for the "conventional" truth proposed by the parties. In this context, the court’s evidentiary powers and the parties’ evidentiary faculties are analyzed and regulated.

In domestic law –especially in criminal and civil litigation— the number of excessive evidentiary formalities has declined, although there is greater demand –usually with deplorable exceptions— for guarantees concerning the filing and effectiveness of evidence. The international system, which is committed to the real truth, does not endorse excessive formalities.

The Court "has always been flexible with the standard of proof it applies for receiving evidence."⁶ In this sense, it adheres to the international jurisprudence that "has recognized the power of the courts to weigh the evidence freely,"⁷ and in this capacity it recognizes the possibility to "use the rule of ‘sound criticism’ to weigh the evidence properly, thus enabling the judges to arrive at a decision as to the truth of the alleged acts while taking into account the object and purpose of the American Convention,"⁸ "without detriment to the principles of legal certainty and the procedural equality of the parties."⁹

In summary, the procedures that evolve in the Court –both in general and in terms of that concerning the evidentiary system- "are not bound by the same formalities that bind domestic courts in their proceedings. It has been the consistent jurisprudence of the Court that some latitude is permissible in receiving evidence and that when certain elements are added to the body of evidence, particular attention must be given to the circumstances of the case in question, with due regard for the conditions necessary to preserve the principle of legal certainty and the balanced procedural rights of the parties."¹⁰

The general observation made by the Court in the Cayara Case regarding the nature and finality of the proceedings applies to this discussion. It said, and rightly so, that:

the procedural system is a means of attaining justice and that the latter cannot be sacrificed for the sake of mere formalities. Keeping within certain timely and reasonable limits, some omissions or delays in complying with procedure may be excused, provided that a suitable balance between justice and public certainty is preserved.¹¹

It is worth stressing, as jurisprudence itself does, that procedural flexibility is not unlimited. It therefore allows for any variation for the sake of a true or alleged fulfillment of justice. In fact, the rules of the process are established to guarantee, as much as possible, the attainment of that objective. In view of this, the end and the means should go hand in hand. Obviously, it will not always be easy to achieve the desired balance, but it will at any rate be indispensable to strive for it¹² On another occasion, when analyzing the rule of exclusion of illegally obtained evidence, I have stressed that contrary to what is asserted by the refutable principle of ‘the end justifies the means,’ in these cases the justice of the means cohere to justify the end reached.

For the time being, jurisprudence insists on the preservation of the balance between the parties; should it not exist, a crucial rule of democratic trial would be broken. Furthermore, the court pays attention to "legal certainty" –in some cases, as seen, it refers to "public certainty"— taking into account that the excessive torpor in observing the procedural rules would damage the certainty that the parties should have regarding their rights and obligations, burdens and exemptions: the process would then become uncertain and random. Evidently, legal certainty and public certainty are not confused, although the concepts obviously have points in common.

On the other hand, as stated above, the fact that the filing and assessment of evidence is not subject to the rigorous formalities that still characterize certain national laws does not imply that one can ignore the explicit rules of international proceedings, established for the security of the process and to give guarantees to the parties. Nor does it mean that one can dismiss natural laws inherent to the very nature of the evidence and the general guiding principles of the proceedings, such as the rebuttal system and the critical analysis of the evidence.

In view of this, it is interesting to examine some aspects of the evidentiary system brought before the court’s consideration concerning evidence related to the Bámaca Velázquez Case.¹³ At this point, two extremes should be mentioned: the opportunity to present evidence, on one hand, and its characteristics, particularly that of declarations transcribed in a document, on the other.¹⁴

As to the first point, it is worth considering the provisions of article 43 of the Rules of Procedure of the Court,¹⁵ which determines the opportunity to file evidence and establishes, in consequence, the possible preclusion of the respective right. This does not prevent extemporaneous admission, which the same precept limits to alleged force majeure, a serious impediment or a supervening event.

However, extemporaneous evidence should be rejected if the party who tenders it "does not mention, or even demonstrate, the existence of force majeure,serious impediment or a supervening event… which could justify the extemporaneous contribution to the process." If the Court "does not reject this evidence inmediatly, the express warrant of article 43 of the Rules of Procedure would be apt."¹⁶

As to the second point mentioned, the examination referred to "documents obtained from offices of the government of the United States of America, in which different facts are indicated without expressing the source of knowledge of them." Indeed, they do not attest to the identity of the person who provides information or makes observations, nor to the circumstances and manner in which he or she has knowledge of the facts to which he or she testifies, that is, the witness’ so-called "basis of the testimony".

Thus, it is "impossible to critically establish the veracity" of reports: the characteristics of the evidence which is requested to be contributed and which could be explained in certain cases and for certain reasons, "is wholly incompatible with the requirements of evidence in a process."¹⁷

The case of "sworn testimonies" before a notary public has gained the attention of the court and litigants. It involves giving out information before a notary public, under oath –or, depending on the case, the formality or solemnity set forth in internal law- about matters pertaining to the process, carried out by the alleged victim, his or her family members or successors, or third parties. Obviously, this manner of collecting evidence saves a considerable amount of time and money, especially if one considers that we are looking at an international authority that handles cases with the participation of people that live far away and are not always able or willing to travel, whether because of a lack of means to do so, or for fear of leaving their place of residence and appearing directly before the court.

It is possible to discuss the nature of this evidence: is it a document? Is it a declaration or an opinion? It seems obvious that the contents is a statement of a party or of a third party (statement, confession, opinion) collected as a whole (document) that is written by a legally certified body (notary public) to attest to what happens in his or her presence. In this case, the notary public can only attest that a certain, duly identified person presented him or herself and declared what he or she considered pertinent. Therefore, the quid of this issue is found more in the appraisal the court makes on the weight of the "sworn testimonies", taking into consideration the circumstances surrounding it.

In the Loayza Tamayo Case, the president of the Court called for the victim and the State that "for the sake of procedural speed and economy, particular consideration be given to the possibility of presenting some testimonial and expert evidence in the form of sworn affidavits."¹⁸ On proceeding thus, it "would help ensure that the oral proceedings¹⁹ at this stage of the proceedings would be dispatched as swiftly as possible, without limiting the right of the victim, of the Commission and of the State to offer any testimony that, in their opinion, the Court should hear directly."²⁰

There are the motives and reasons to admit sworn testimonies: the "declarations signed in the presence of a notary and presented by the victim should be admitted into evidence." Once admissibility is resolved on in general terms, the Court set its criteria regarding effectiveness:

[it] has the discretionary authority to weight the declarations or statements presented to it, both written and otherwise. Like in any court, it can properly weigh the evidence, applying the rule of "sound criticism" that enables judges to arrive at a decision as to the truth of the facts alleged, while bearing in mind the object and purpose of the American Convention…²¹

III. EXHAUSTING DOMESTIC REMEDIES

A classic rule on access to international justice is to have exhausted all the remedies under domestic law.²² This concept should not necessarily be strictly understood as objections. In general, it includes domestic procedures, under whatever name they are given, on the condition that they have to do with accessible legal means or remedies, speedy and relevant to prevent an act or to clarify a situation that brings about a legal judgment on the act in question with the pertinent consequences. Exhausting these remedies is usually found in the lists of objections pertaining to the admission of the claim.²³

In the Castillo Petruzzi Case,²⁴ the Court took on an interesting issue: does simply presenting a claim imply the beginning of an international proceeding in such a way that remedies under national jurisdiction should have been exhausted before presenting said claim? The response was negative: in this case,

… if the Commission did receive the complaint in this case while the criminal proceeding was pending a final judgment before the military court of the last instance, the mere filing of it did not amount to the Commission’s commencement of the processing of the matter.

Therefore, it is worthwhile to differentiate filing a complaint and the activity the Commission could carry out, taking over the case from a lower court. Thus:

… the receipt of the complaint, which derives from an act of the complainant, should not be confused with its admission and processing, which are accomplished by specific acts of the Commission itself, such as the decision to admit the complaint and, when appropriate, the notification of the State.²⁵

IV. SUITABILITY AND EFFECTIVENESS OF THE REMEDY

We shall now refer to two points mentioned in the preceding lines: the suitability of the remedy under domestic law to reached the objective planned and the effectiveness of the remedy set forth by said law. This has to do with two different things: the first has to do with the existence itself –regulated in domestic statutes– of a suitable remedy based on its nature. The second, which assumes the legal existence of the remedy, involves the real workings of it, that is, its effectiveness, which arises especially from the express conditions under which the procedure is pursued or developed.

As to the first issue outlined, in the judgment on preliminary objections in the Cantoral Benavides Case,²⁶ the Court pointed out "that the State (had) not specified in an unambiguous manner the remedy which would exhaust the domestic proceedings...". A contrario sensu, it was understood that it was the State’s responsibility to clearly and unambiguously define said remedy. In this respect, the Court added: "in accordance with the principle of good faith that must prevail in an international proceeding, it is necessary to avoid any ambiguous statement that could result in confusion."²⁷

In dealing with acts regarding detention, it is well known –as asserted by Court jurisprudence– that the habeas corpus is "the appropriate remedy to combat violations to the right of personal liberty."²⁸ It would not be admissible to demand, therefore, that before recurring to international bodies, the interested party should start, in addition to the habeas corpus, other procedures whose nature is radically different, though they may be related to the whereabouts of a certain person, such as a declaration of absence or the presumption of death, inherent to civil rule of law.

As to the second assumption mentioned, it would be necessary to ensure the effectiveness of the remedy. This matter has been broadly examined by international law on human rights protection.²⁹ Who has the obligation to do this? The Inter-American Court of Human Rights has examined the problem of evidence as to the effectiveness of the generally accessible remedy. The duty falls upon the State: "the State must prove the effectiveness of the domestic remedies", the Court decided in the judgment on preliminary objections for the Castillo Petruzzi Case³⁰ and again in that of Cantoral Benavides.³¹

V. LEGAL CAPACITY AND STANDING

The study of issues regarding legal capacity and standing is particularly important to set in motion the international human rights protection system. In this regard, the preponderance of the interest in protecting rights over other concerns related to procedure is evident.

In the Castillo Petruzzi Case, the State mentioned that the non-governmental organization that reported to the Commission acts that allegedly violated human rights, lacked legal status, since that organization³² was not formally registered before the pertinent authorities of its country, or the register showed certain questionable aspects. Furthermore, the persons that held the capacity of representatives of that organization lacked standing.

This topic can be studied from two perspectives. On the one hand, the lack of formality that the organization and its representatives should meet is questioned. Therefore, the Court held once again that "the formalities that characterize certain branches of domestic law do not apply to international human rights law, whose principal and determining concern is the just and complete protection of those rights."³³ In the end, "certain formalities may be excluded, provided that there is a suitable balance between justice and legal certainty", as the Court previously pointed out.³⁴

The other perspective is related to the enforcement of fundamental article 44 of the American Convention.³⁵ This article empowers any person or group of persons (individuals) to file charges or complaints for violations of the human rights set forth in that document. Even supposing that the organization was irregularly incorporated or its representatives lacked standing to act as such, we would face a "group of persons", or at least one "person", pursuant to the terms of article 44. That is sufficient for the instance to be accepted and for the procedure to be carried out. Such a range in the right of action of the petitioner is a generous characteristic, intrinsic to the inter-American regime³⁶ and, of course, it dismisses the debate on the formal terms of non-governmental organizations.

The problem concerning the representation to act in favor of an alleged victim or his rightful claimants falls within the same sphere of action. The Court studied the case in the judgments of reparations of Castillo Paez and Loayza Tamayo Cases, in which it underlined its own practice, within the scope of the international jurisdiction:

A clear manifestation of the will of the victim’s next of kin in the powers of attorney submitted suffices to constitute sufficient evidentiary material in this international jurisdiction. Thus, regardless of what it is called -power of attorney, letter of attorney, authorization, or any other term-, any document wherein the persons granting the power of attorney express their desire to be represented is sufficient to be legitimate for this Court, which need not conform to the formalities required by domestic laws.³⁷

Thus, the above-mentioned ruling establishes the limits inherent in the "the use to which the representation will be put": the corresponding instruments must "clearly identify the party bestowing the power of attorney and reflect a lucid and unambiguous manifestation of will. It must also name the person to whom the power of attorney is being given and, finally, indicate in very specific terms the purpose of the representation."³⁸ The same was established in the Judgment of the Loayza Tamayo Case.³⁹

VI. DEFENSE OF THE STATE BEFORE THE COMMISSION

The procedure followed before the international human rights protection bodies implies a continuity that goes through diverse stages and offers the contestants different opportunities within the process, which must be exploited adequately. Here operates a regime of precepts, which in fact has great influence on the subsequent development of the case.

Both the State and the alleged victim can wield certain rights before the Commission, in such a way that the counterpart, informed of the charges and defense, is able to defend himself in due time, which can be during the procedural stage carried out before the Commission. This issue was also analyzed in the Castillo Petruzzi judgment of preliminary objections.

The Court noted that the State had not alleged the failure to exhaust remedies under domestic law before the Commission. Based on numerous European Jurisdiction and the Inter-American Justice precedents, the Court held that "by not doing so, it (the State) waived a means of defense that the Convention established in its favor and made a tacit admission of the non-existence of such remedies or their timely exhaustion".⁴⁰

VII. STIPULATING THE VIOLATION IN THE COMMISSION REPORT

The issue discussed in the preceding section can be further studied from the perspective of the report made by the Commission in its procedural stage, before the case is under Court jurisdiction. Likewise, it is necessary to inform the State of the charges against it in good time, so it can defend itself.

This leads to the comparison of the violating events sustained in the Commission report. Those events are the result of the inquiries carried out by the Commission in the first stage of the international proceeding –which can be the sole procedure, should the case not be brought before the Court- and the facts stated in the complaint the Commission lodges before the Court. The State can refute the contents of the Commission report, and then it would have to rebut the charges in the complaint. The identity of both of them must be carefully analyzed.

In the ruling on the objections of the Castillo Petruzzi Case, the Court determined that:

although it is true that the application need not necessarily be a simple reiteration of the report issued by the Commission, it is also true that it should not contain types of violations of which the State was not aware during the stage of the proceedings before the Commission itself, and which it could not, therefore, refute at that time.⁴¹

Therefore, it should be said that the Court acknowledges the difference between the particular obligations that the Commission must specifically mention, and "the general obligations set forth in the American Convention (Articles 1(1) and 2), compliance with which the Court must officially examine."⁴² In this case, it is not relevant whether the Commission makes reference to said general obligations before arguing them in the complaint or not. Despite the possible omission, the Court will have to take those violations into account, acting therefore unofficially.

The preliminary objections of the Cantoral Benavides Case provide a more detailed example of this issue. While in the Castillo Petruzzi Case there was a right that had been allegedly violated and in which the person detained abroad must have consular assistance, in the Cantoral Benavides Case there was the question of a lack of adapting the anti-terrorist laws to the American Convention. The government argued that the failure was not raised by the petitioners before the Commission, nor was it transmitted by the Commission to the State or included in its Report.

However, the Court held that it was empowered to:

examine (motu proprio, as it said below) in the context of a concrete case, the substance and legal effects of a domestic law from the viewpoint of the international norms for the protection of human rights to determine the compatibility of the law with those norms.⁴³

The Court’s decision lies on the idea that Article 2 of the Convention –to which the violation being charged makes reference to-, as in Article 1(1) of that instrument,

sets forth a general obligation -that is added to the specific obligations as to each of the protected rights- and the Court, as the judicial organ of supervision of the Convention, has the official duty to determine its fulfillment by the States Parties.⁴⁴

VIII. MODIFICATION OF THE COMPLAINT

The complaint is a fundamental act of the process: it is the framework for the definition of the litis, jurisdictional performance, and the final judgment. From that ensues the uniqueness of the complaint, which was also examined by the Court in the preliminary objections of Castillo Petruzzi Case. In this case, the question was to determine whether the complainant’s subsequent acts, which were aimed at modifying the terms of the complaint, would have procedural effectiveness.

To this regard, the Court acknowledged:

there can be no more than one text of an application, considering the characteristics and consequences of this proceeding, but at the same time it observes that in this case the applicant incorporated purely formal corrections and changes, so as to improve the appearance of the document, without modifying any of the objectives stated in due time or thus affecting the procedural defense of the State.⁴⁵

From this, it can be concluded that the claim, consisting of the complaint, can only be lodged once; that it brings in the applicant and establishes the nature and shape of the space for exercising the defendant’s defense, and that making formal changes to the complaint (simple clarifications or notes) is only admissible if they do not alter any of the claims or the reduction of the defense.

IX. CONGRUENCE IN THE CLAIMS LODGED BY THE COMMISSION

For the human rights protection procedure to reach the objectives inherent to it, the Court must comply with the pro homine principle. One of the consequences of this rule is overcoming certain apparent discrepancies, which do not alter the merits of the claim, and the preference for the merits of the case over simple formalities, regardless of the importance they might have in domestic jurisdiction.⁴⁶

With regard to the preliminary objections set forth in the Castillo Petruzzi Case, the Court must have analyzed prima facie incongruity in the petitions made by the Commission. In order to do so, it resorted to the group of petitions and made inquiries as to the possible compatibility between the different claims being lodged.

In this case, the Commission, on one hand, requested the annulment of the proceedings brought against the alleged victims, and, on the other, called for the accused to be released immediately.

Even though the statements in these requests could have been more precisely formulated so as to avoid confusion, the Court deems that the incongruity is more apparent than real. The annulment of a trial that resulted in a final judgment of conviction does not imply the commencement of a new trial against the same person for the same facts, which would be a flagrant violation of the principle of non bis in idem, but would lead instead to the immediate and absolute release of the accused. The Court, on examining the statements of the Commission, can establish their possible scope, which has a double objective; the annulment of the trial on the one hand, and the release of the accused as a natural legal effect of that annulment, on the other.⁴⁷

This implies that the Court examines the proceeding brought against the prisoner and the nature of the resolution with which that process ended, to assess compliance with the rule of legality and the subsistence or not, whatever the case might be, of the final judgment. These issues were not taken into account in the Court’s determination on the preliminary objections. They do belong, naturally, to the judgment on the merits of the case.

Essentially, the same problem arises in another part of the debate on preliminary objections, which were also decided by the Court. Now, that problem is the congruence between the statements made in the body of the complaint and the requests of the petitioning Commission. This congruence should exist, "taking into account the natural continuity that logically exists" between that and this. Nevertheless, neither is there an irreducible obstacle that should restrain the Court, because the Court "can and must, pursuant to the principle of jura novit curia,⁴⁸ examine the act as a whole and determine the nature and meaning of the petitions made by the complainant in order to duly study them and therefore render a decision."⁴⁹

X. ILLICIT CONDUCT OF ALLEGED VICTIMS

Human rights protection now faces a false dilemma, which has prospered in certain opinion spheres: human rights or public security. In terms of this alternative, the vulnerability of rights in order to preserve security and peace would be justified simply for the sake of argument. If the issue was rephrased, it would be said that the seriousness of the crimes perpetrated by the alleged victims has an influence on the way they are dealt with, it "moderates" interest in their human rights and reduces or limits the role of the corresponding international organs.

This issue appears in the preliminary objections of the Castillo Petruzzi Case. Here, an appeal is made based on the extreme seriousness of the violations the alleged victims were charged with. In this regard, the Inter-American Court sustained that "it can not nor should not discuss or judge the character of the crimes attributed to the alleged victims, certainly very grave, as that is reserved to the appropriate criminal court."

Then, the Court remembers that:

[the Court] is called upon only to decide on concrete violations of the provisions of the Convention, concerning any persons and independent of the legal situation that applies to them or of the legality or illegally of their conduct from the perspective of the criminal norms that could be applicable under national law.⁵⁰

XI. NATIONAL SOVEREIGNTY AND INTERNATIONAL DUTY

The concept of sovereignty weighs on the international legal order and often determines the actions and reactions of the States. It would be hardly said that this sensitive issue has been definitively resolved and that there is a unanimous opinion on the relationship between international law –the obligations it contains and their consequences- and national sovereignty. That is why reasons of sovereignty, associated with the enforcement of domestic legislation, are occasionally opposed to claims for international law and the actions of international jurisdiction.

Nonetheless, a State cannot neglect the commitments it freely acquired, by exercising its sovereignty, putting forward reasons derived from it. When the State signs and ratifies the American Convention on Human Rights, "[it] accepted the treaty obligations set forth in the Convention with respect to all persons subject to its jurisdiction without any discrimination."⁵¹

On becoming a State party to the Convention,

[it] accepted the competence of the organs of the Inter-American system for the protection of human rights, and therefore obligated itself, also in the exercise of its sovereignty, to participate in proceedings before the Commission and the Court and to assume the obligations that derive from them and from the general application of the Convention.⁵²

XII. REPARATION, IN GENERAL TERMS

The international responsibility of the State for violating the duties assumed in terms of human rights has a natural end: reparation. If there were no reparation, the importance of the submitting to Court would greatly diminish. It would even become irrelevant, or, at least, it would bear meager importance for the victim and rightful claimants.⁵³

Indeed, the scope of reparation brings about significant concerns, both in general and particular litigation. In different judgments, the Court has defined that concept. It comes back to this point in the judgment of reparation of the Garrido and Baigorria Case.⁵⁴ In this case, the Court recalled that reparation is a "generic term that covers the various ways a state may make amends for the international responsibility it has incurred." Pursuant to that concept, there are different "specific methods" of reparation, which "vary according to the damage caused." It is possible that reparation "may also be in the form of measures intended to prevent a recurrence of the offending acts."⁵⁵ Therefore, the existence of two trends of reparation can be seen: one looks to the past and strives to resolve the injuries caused by the past action, while the other looks to the future and its aim is to prevent new violations.

It is important to point out that all aspects of the obligation contained in Article 63(1) of the Convention is governed by international law, such as, for example, its scope, characteristics, beneficiaries. None can be modified by the domestic laws of the obliged party.⁵⁶

XIII. THE INHERENT RIGHT TO COMPENSATION AND ITS TRANSMISSION BY SUCCESSION

It is important to stipulate under which right certain compensation is received in consequence of human rights violations. This is even more important when these violations brought about an individual’s death or disappearance, with other people related to said individual through legally noteworthy relationships, such as marriage or kinship, surviving him or her.

This is evidently not about people who have originally suffered violations to their rights and in this sense can be counted as victims in themselves. It is about individuals who claim compensation due to violating acts that initially fell upon another person or upon others, but that have gone beyond to affect them, causing a certain impact or pressure on their own legal rights. This is what happened in the Garrido and Baigorria case: the missing individuals had several relatives who claimed a large compensation. What was the scope of these compensations? Under what right should these compensations be analyzed and, if the case, be granted?

The Inter-American Court, invoking court precedents,⁵⁷ held that "the right to compensation for damages suffered by the victims up to the time of their death is transmitted to their heirs by succession." In contrast, "the damages owed to the victims’ next of kin or to injured third parties for causing the victims’ death are an inherent right that belongs to the injured parties."⁵⁸ This was also affirmed in the reparations judgment in the Castillo Páez Case.⁵⁹

In order to separate both hypotheses, consider that an individual was mistreated by official agents in such a way that he became entitled to certain compensation for the suffering he or she underwent, that is, under the concept of moral damage. If that person dies, the right to compensation that corresponds to him or her is transmitted, successively, to his beneficiaries. The beneficiaries, in turn, go through a certain amount of suffering, which is the result of the death of a loved one. This suffering –which implies a loss of inherent legal rights– create for these people a different right from the right that comes to them through succession. Both rights are not to be confused. Each one exists on its own; the court ruling should distinguish, quantify and accrue them.

XIV. COMPENSATORY OR PUNISHABLE NATURE OF REPARATION

First of all, reparation is reciprocity: a right for a wrong; payment of a certain amount or the adoption of a measure determined according to the legal damage caused. This, then, has to do with compensating. However, there is the idea of giving reparation more extensive power than that which strictly corresponds to the damage or harm caused. With this version, reparations would assume a punishable and discouraging role. It would no longer be about simply assessing damages and harm and consequently ruling on them, but about punishing for the violations committed and discouraging new violations. In the terms of criminal law, reparation would have the purpose of prevention of unlawful behavior in general.

In the reparations judgment for the Garrido and Baigorria Case, the Court rejected the victims’ next of kin’s demand for "exemplary damages". In this respect, the Inter-American Court of Human Rights said that such claims "are not in the nature of this court and are not within its power." It added, among other considerations: "The Inter-American Court is not a penal court and, in this particular matter, its competence is to determine the reparations that States that have violated the Convention must make."⁶⁰

XV. MATERIAL DAMAGES: FUTURE EARNINGS

Inter-American Court of Human Rights jurisprudence has been extensively concerned with material damage, which results from events violating human rights. Here, I will just make reference to one aspect of the matter posed in the Castillo Paez Case, without the possibility of delving further into this issue, due to its characteristics and the evidence available. I am referring to "the suggestion to the Court that a lump-sum compensation be awarded on the premise that an improvement in the victim’s future income was a ‘probable certainty’."⁶¹

This is an interesting and rich matter, which has been considered by other national and international bodies. Usually, the amount of the damages caused is disclosed starting from well-grounded facts, such as the victim’s job, income and age at the time the loss of health or life took place. Based on this, it is possible to build a reasonable forecast and assess the lucrum cessans, the essence of the impairment of resources.

Now, the issue goes beyond that when the "opportunity" regarding increased income enters into consideration: a lost opportunity may cause more or less certain damage -a relevant concept, of course, for this subject-matter- from which a certain obligation to compensate.⁶² Of course, this issue is not to be confused with the "life plan" problem analyzed in the Loayza Tamayo Case, which I shall mention later.⁶³ In the Castillo Paez Case, the Court did not have sufficient evidence to "prove the loss of opportunity" from which a sentence would derived. However, it established a criterion that would contribute, in time, to make progress in this area: the lump-sum compensation that was intended under this concept "must be calculated on the basis of a definite injury that is sufficiently substantiated to find that the injury likely occured."⁶⁴

In other words, a high degree of reasonable persuasion is needed as to the real occurrence of the assumption on which the increase of the victim’s income would depend. If this happens, it would be fitting to estimate the damage and consequently, decide. Thus, the damage would be probable and not merely possible. If the latter were enough, the number of court orders for compensation for vague and barely hypothetical opportunity would multiply, without sufficient grounds.

XVI. SOCIAL DAMAGES DUE TO THE LOSS OF HUMAN LIFE

In analyzing the same Castillo Paez Case, the Court must have analyzed the novel assertion posed by the victim’s next of kin. They said that "there is a value that can be attached to every individual’s life that transcends his earning potential, since every individual is an essential and unique part of his family, his community, his nation and humanity." They likewise clarified that this is "a separate item of reparation, an economic assessment of the cost of the violation to the right to life,"⁶⁵ which is not to be confused with the claim of inheritance specifically and strictly associated with the resulting injury and the lucrum cessans, nor with the moral damages the next of kin suffers.

The Inter-American Court of Human Rights understood that the petitioners’ statements could be interpreted as "allusions to the right of a nation, a community and a family not to be denied the life of one of its members."⁶⁶ The Court clearly acknowledged that every individual is a member of a family and a citizen of a State, and also generally belongs to intermediate communities. "However, this Court has not held that the moral damages caused by an individual’s death extend to such communities and even less to a nation as a whole." In exceptional cases, such compensation could be ordered granted "to specific communities that have suffered proven moral damages."⁶⁷

XVII. BENEFICIARIES OF THE COMPENSATION

There is clearly no issue when the beneficiary of the compensation is the victim himself of the unlawful act. Problems may arise, however, when third parties are involved, as frequently happens, whether it be that they concur with the direct victim, or it that they show up in the absence of a victim, who has died or has not been located. In view of this, it is fitting to establish the scope of the concepts of "family" or "next of kin", who are considered the "injured party."

The reparation judgment in the Loayza Tamayo Case dealt with this matter: the term "next of kin" shall be "interpreted in a broad sense to include all persons related by close kinship." In this case, the Court took into account Mrs. Loayza Tamayo’s sons, daughters, parents and siblings. The Court’s decision on limiting the scope of the reach of the concepts it handles –like those of family and next of kin– is relevant, without necessarily remitting the notion idea domestic law provides for this extreme issue. Therefore, we stress that the topic of subsequent reparations to a responsibility of an international nature is regulated by international law itself.⁶⁸

XVIII. COSTS

Access to justice, an important and crucial issue in modern law so that the legal norm –and the system of guarantees it represents– attains authentic efficiency, implies the possibility of having the necessary resources to go before the courts and exercise one’s claims. If said resources are not available, said access is misleading. Undoubtedly, it is true in a domestic scope and even more so in an international one. On an international level, access to justice, backed by legal provisions, stumbles over a hostile reality, which is frequently insurmountable. Thus, the importance of an apparently minor issue arises: legal costs. For a long time, acknowledgement of these has been requested, as a condition of access to justice.⁶⁹

There is a tendency, based on European law,⁷⁰ to give the individual direct access to international jurisdiction. Among us, the Inter-American Commission holds the legitimacy –as do the States– to advocate for solutions to conflicts of human rights violation before the Court. However, Court rules allow the interested party, that is, the person with a legal right in the claim in a material sense, to take on the person’s defense in the stage of reparations. Article 23 of the Inter-American Court of Human Rights Rules of Procedure, issued by this Court through its decision of September 16, 1996, sets forth: "At the reparations stage, the representatives of the victims or of their next of kin may independently submit their own arguments and evidence." Here there is a new locus standi, from which forthright assumption of the claimant’s role can be derived, in a more or less near future. This progressive provision clearly brings about patrimonial effects.⁷¹

This topic is analyzed in detail, for the first time, during the reparations judgment of Garrido and Baigorria, regarding the victim’s right to receive compensation under the concept of costs.⁷² It includes a series of questions: procedural stages covered by the right to receive costs and the subsequent obligation to pay them; the scope of these and information to be considered in order to reasonably set the amount of the costs. The Rules of Procedure of the Inter-American Court of Human Rights, which establishes the substance of the sentence, includes "the decision, if any, in regard to costs..." (Article 55.1.h).

The Court had already decided on the obligation to cover the costs corresponding to the procedures carried out before domestic jurisdiction.⁷³ In Garrido and Baigorria, the Court rules on that which concerns an international scope. In terms of this, the Court upholds, realistically, that legal assistance for the victim, which began in domestic courts, "and continues throughout each instance of the inter-american system for the protection of human rights, that is, during the proceedings conducted before the Commission and before the Court, except when the legal assistance received by the victim or his family is free".⁷⁴

In consequence of the above, the sentence regarding costs includes those arising from national and international procedures, and in the latter, the procedures brought before the Commission and the Court.⁷⁵ Excluded –under the concept of "free legal assistance"– are expenses made by other individuals and that do not represent direct expenditure for the victim or his acquisition of patrimonial obligations before third parties.

The second topic to consider is the scope of the costs. In this extreme case, it is essential to specify that costs should be regulated according to the expenses "that the victim or his or her representative has actually paid out or promised to pay"⁷⁶and the duly proven –at least with evidence or reasonable presumptions– circumstances of the case and the characteristics of the procedural human rights protection system.

As can be seen, there are two possibilities regarding the expenditure made as well as the individual who made the expense. It is not necessary for the expense to have been made, by means of a concrete and current outlay of money; future committed expenses are also taken into account: that is, a debt that will need to be paid. Under this assumption, verification will make reference to the debt incurred. As to the individual, it can be the victim or his legal or contractual representative, a status established very broadly but at the same time seriously. Obviously the victim him or herself cannot always decide on and make expenses that lead to the defense of his or her rights; such decisions and expenses are subject to the representative who, however, is not a donor.

As to the international human rights protection system, it is well known that this cannot exactly be assimilated into the domestic legal system: it has its own characteristics, among them, those which separate it from the system, mainly applicable to patrimonial matters, in which the idea of profiting prevails.

I will not say, of course, that only altruism is valid here, since there is the case of rendering professional services, which deserves fair remuneration. However, I will not omit highlighting that the defense of human rights bears a much greater and more decisive element of solidarity, fellowship, humanity –however one wishes to express it– in terms of the conduct of the service provider than that which could exist in litigation for multinational corporations, foreign trade, industrial property, financial aid and other similar issues.

Therefore, the judgment pronounced in Garrido and Baigorria acknowledges the court, "in the exercise of its jurisdictional powers," the authority:

to make a prudent estimate of the specific extent of the costs that should be ordered, taking into account any receipts or vouchers provided, the particular circumstances of the case, the nature of the jurisdiction for the protection of human rights, and the characteristics of the respective proceedings, which are unique and different from those of other proceedings both at the domestic and international levels.⁷⁷

There is a change of course in this ruling, which contributes to setting the scope of the admissible costs: "those that are necessary and reasonable according to the specifics of each case."⁷⁸ The Court later decided on the Castillo Páez⁷⁹ and Loayza Tamayo Cases following this same sense.⁸⁰

A third topic deserving consideration, in this regards, is the identification of specific elements that the Court should consider for setting the quantum –a reasonable "quantum," the ruling states– of the costs. The costs or proportion system is rejected: it is not acceptable to understand that costs should be proportional to the amount of compensation obtained. The reason for this objection is that the attorney is not the plaintiff’s "partner", claiming certain benefits for both.

Once this objection is made, the Court states that:

there are other more important factors to be weighed when assessing the performance of the attorneys in a proceeding before an international tribunal, such as the evidence introduced to demonstrate the facts alleged, full knowledge of international jurisprudence, and, in general, everything that would demonstrate the quality and relevance of the work performed.⁸¹

It is not possible to lose sight of the fact that not only legal professionals are involved in the success of the case, but also the effort of non-government organizations that tend to advocate the redress of damages to the victim and the work of the body authorized to try the first phase of the international procedure and to promote the second phase, as the only legitimate body: the Inter-American Commission of Human Rights.

Of course, the new position adopted by the Court in the Garrido Baigorria Case does not cancel out the reasonable criteria upheld until now, in the sense that it is not admissible to reimburse Inter-American system bodies –the Commission and the Court– for the expenses they themselves made, according to their specific functions and the working dynamics they have established. This is because these bodies are maintained by the system itself, which covers their costs with the funds provided by OAS member States.

XIX. THE OBLIGATION TO ACT IN A DOMESTIC SPHERE: REFORM OF NORMS, INVESTIGATION AND PUNISHMENT OF THE INDIVIDUALS RESPONSIBLE

The human rights violations bring about a series of consequences for the State, under the concept of international responsibility. One of them is the compensation owed to the victim or to his beneficiaries. Another is the punishment of the one who individually acted unlawfully. Yet another is sometimes the modification of a provision or promulgation of norms that lead to ensuring the dominion of rights derived from the Convention.

I will not analyze this last point in extenso at this time, though it certainly represents one of the most indicative issues of the human rights protection system when considered as a whole. It is well known and admitted that the plenary laws of humankind and the protection of their dignity, embodied in known rights and effectively carried out, has both national and international scope. From this come countless consequences, which extend into the complex relationship between measures of an international nature –acts and laws– and those of a domestic kind, both administrative and legislative and judicial.⁸² The existence of national provisions that expressly bring about domestic law initiatives based on a ruling issued by an international human rights protection agency is missing in this respect.⁸³

As to what makes the punishment for the human rights violator –the individual who makes the violation, and no longer the State responsible–, it should be kept in mind that the Inter-American Court cannot pronounce a sentence, since it is not a domestic (or international) criminal court. However, it can –and should– order the State to carry out the relevant investigations and apply the appropriate punishments, according to its own laws. Doing so is the consequence of the State’s international obligations, contained in the corresponding convention, in addition to that which pertains to the relevant national norms.

"The effectiveness of laws is of fundamental importance in a legal system," the Court stated in its reparations judgment for the Garrido and Baigorria case, "as lack of effectiveness may compromise their standing as law."⁸⁴ The power "to file cases" –to give it a name– is still not sufficiently established for it to have the indications made by the Inter-American Court of Human Rights in grounding its sentence on individual participants, for the purposes of domestic criminal inquiries. Their identity as agents of the State –or figures with the government’s complacency– and the undue behavior carried out derives from the State’s international responsibility.⁸⁵

In the Garrido and Baigorria case, the Inter-American Court of Human Rights had the opportunity to rule on the individual, in the knowledge that at the time of issuing the monetary reparation those responsible for the violation had yet to be tried. In view of this, the court stated "Argentine laws that guarantee the right to life have been violated. Therefore, to ensure their effectiveness, Argentina must apply the provisions established for violations of those laws; in other words, it must impose the corresponding sanctions".⁸⁶ We find ourselves therefore in the line of thought that insists on the effectiveness of human rights, which entails punishing transgressors and the reparation of the violations.⁸⁷

Let us expand on these considerations regarding norms that could go against investigation. In the Castillo Paez case, the matter was outlined again in light of the obstacles that could arise in the inquiries and punishment of unlawful acts, specifically when there are domestic legal norms that obstruct asserting criminal responsibility, as occurs when an amnesty law has been enacted and establishes or seems to establish the acts that could be punishable and protect those who could be criminally responsible for said acts.

In the judgment of November 3, 1997, on the merits of the case, the Court had ordered the investigation and punishment of those responsible for the acts that brought about the claim. The court then stated that "moreover, on the assumption that internal difficulties might prevent the identification of the individuals responsible for crimes of this kind, the victim’s family still have the right to know what happened to him and, if appropriate, where his remains may be".⁸⁸ This is reiterated in the reparations judgment as a measure of reparation in favor of the next of kin of Castillo Paez, because the remedy of habeas corpus was ineffective in securing his release and perhaps saving his life.⁸⁹

In the reparations judgment, the Inter-American Court of Human Rights upholds that among said "internal difficulties" is the amnesty law enacted by Peru, "since it obstructs investigation and access to the courts and prevents the victim’s next of kin from learning the truth and receiving the reparations to which they are entitled."⁹⁰

The Court’s reasoning revolves around Article 25 pursuant to Article 1(1) of the convention. The article "is one of the fundamental pillars not only of the American Convention, but of the very rule of law in a democratic society in the terms of the Convention,"⁹¹ and maintains a direct relationship with Article 8(1).⁹²

Thus, the State must investigate, try and punish those responsible and prevent the impunity of unlawful acts, characterized as "the total lack of investigation, prosecution, capture, trial and conviction of those responsible for violations of the rights protected by the American Convention."⁹³ The same ruling adopted in the Castillo Paez Case on the issue referred to in this section can be found in the reparations judgment of the Loayza Tamayo Case.⁹⁴

Regarding the Court’s ruling on this point, passed unanimously, I cast a concurrent vote in which I analyze "the nature that (the reparations judgment) could have in light of what is being analyzed herein, as well as the ideas and concerns that could have disclosed it," in my opinion. Therefore, I stress the great "convenience and need to enact norms of amnesty that contribute to the re-establishment of peace, under the conditions of liberty and justice, on ending the internal conflicts that are intended to be solved with measures of this kind, among others."⁹⁵

Extremely delicate points arise in due compatibility between the demands of peace and national reconciliation, on one hand, and the duty to protect human rights and punish those who violate them, especially when very serious violations are committed, on the other. In the end, "amnesty laws are found at the so complex and delicate crossroads between the fight against impunity and the goal of promoting national reconciliation."⁹⁶

Along this line of thought, it is fitting to point out

among the so-called "self-amnesties" issued in favor of those exercising power and by the same people, and the amnesties that come from a peace process with democratic bases and reasonable scope, which exclude the persecution of acts carried out by members of the various groups in contention, but leave open the possibility of punishing the most serious acts, which none of them pass or recognize as fitting.⁹⁷

The rejection of norms is frequent in the first category.⁹⁸

In the same Castillo Paez Case, Judges Cançado Trindade and Abreu Burelli cast a joint concurring opinion on two issues: one of them, the self-proclaimed amnesties and the other, the damage to the life plan, and issue to be analyzed below.⁹⁹ As to the first point, they held that the self-proclaimed amnesties that lead to the impunity of human rights violations:

are incompatible with the duty of States to investigate those violations, rendering it impossible the vindication of the rights to truth and to the realization of justice,¹⁰⁰ as well as, consequently, of the right to obtain reparation;¹⁰¹ [and they are also] incompatible with the general obligation of States to respect and to secure respect for the protected human rights, guaranteeing free and full exercise of these latter.¹⁰²

XX. LIFE PLAN

One of the most interesting and novel issues under discussion in recent jurisprudence of the Court deals with reparations associated to the damage or loss in the victim’s life plan, an issue that is analyzed and solved separately from the material and moral damages, which the court generally examines. This matter was widely studied in the reparations judgment for the Loayza Tamayo case. It is not excessive, but barely strict, to say that the contemplation of damage to the victim’s life plan constitutes a step in the direction of and towards the purpose to "reorient and enrich international jurisprudence in the matter of reparations with the focus and characteristic contribution of international law on human rights".¹⁰³

In this case, the Court defines the limits between damage to life plan, on one hand, and special damages and loss of earnings, on the other. It "is definitely not the same as the immediate and direct harm to a victim’s assets," which is the case in indirect or consequential damage. Nor should it be confused with lost earnings, because it

refers solely to the loss of future economic earnings that can be quantified by certain measurable and objective indicators. The so-called "life plan," deals with the full self-fulfillment of the person concerned and takes account of her calling in life, her particular circumstances, her potentialities, and her ambitions, thus permitting her to set for herself, in a reasonable manner, specific goals, and to attain those goals.¹⁰⁴

Note that this concept, of a complex traits and novel to Court jurisprudence –which is why it has been necessary to describe it in detail, approaching it from various angles and viewpoints– it is developed based on the idea of personal fulfillment and uses as reference various pieces of information about the individual’s personality and personal development, which uphold the individual’s expectations and his capacity to reach them. There is a limit or factor in assessing this: the rationality or reasonability of these expectations. It does not deal with lucubration without bases, fantasies, or impractical illusions.¹⁰⁵

Life plan –according to the Court– "is akin to the concept of personal fulfillment, which in turn is based on the options that an individual may have for leading his life and achieving the goal that he sets for himself." These options "are the manifestation and guarantee of freedom." It can hardly be said that an individual is "truly free if he does not have options to pursue in life and to carry that life to its natural fulfillment".¹⁰⁶

It is evident that we are not before a certain, necessary result, but before a "plausible situation –not merely possible– within the likelihood given the subject’s natural and foreseeable development, a development that was disrupted and upset by events that violated human rights."

Those events radically alter the course in which life was on, introduce new and hostile circumstances, and upset the kinds of plans and projects that a person makes based on the everyday circumstances in which one’s life unfolds and on one’s own aptitudes to carry out those plans with a likelihood of success.¹⁰⁷

To properly uphold the obligation of reparation tied in with this concept, which is placed in the hands of the State, it is important to mention that the alteration of one’s life takes place

unfairly and arbitrarily thrust upon him, in violation of laws in effect and in a breach of the trust that the person had in government organs duty-bound to protect him and to provide him with the security needed to exercise his rights and to satisfy his legitimate interests.¹⁰⁸

In summary, by means of the notion of reparation tied in with life plan, reparation approaches the most just and desirable situation: "complete redress of the wrongful injury. In other words, it more closely approximates the ideal of restitutio in integrum."¹⁰⁹

This concept, associated with the tribute of "Spirit as supreme end and maximum category of human existence," should be further developed in future Inter-American Court of Human Rights jurisprudence,¹¹⁰ which for the moment abstained from translating explicit acknowledgment of the effects on a life plan into economic terms.¹¹¹

Notes
* Inter-American Human Rights Court judge, Researcher at the Instituto de Investigaciones Jurídicas [Legal Research Institute] and professor at the Universidad Nacional Autónoma de México [National Autonomous University of Mexico] Law Department.
1 Article 38 of the Statute of the International Court of Justice gathered together the sources of international law, according to numerous authors, and, also, the references for the decisions of the Court itself. In the conflicts that are brought before the Court it should apply; "d) subject to the provisions of Article 59 judicial decisions and the teachings of the most highly qualified publicists of the various nations, as auxiliary means for the determination of rules of law." In turn, Article 59 states that: "The decision of the Court has no binding force except between the parties involved and in respect to that particular case." César Sepúlveda writes that "international jurisprudence constitutes a very important source of modern international law. But it has a more auxiliary nature, since an international sentence cannot be solely and exclusively based on a court precedent. Judicial decisions are not norms, but they are the sources that are referred to so as to find the applicable rule." Derecho internacional público, 16a. ed., Mexico, Porrúa, 1991, p. 106. On the same subject, cfr. Arellano García, Carlos, Derecho internacional público, Mexico, Porrúa, 1983, pp. 201-203; Seara Vázquez, Modesto, Derecho internacional público, 16a. ed., Mexico, Porrúa, 1997, pp. 70 and 71; Becerra Ramírez, Manuel, Derecho internacional público, Mexico, McGraw-Hill-UNAM, Instituto de Investigaciones Jurídicas, 1997, p. 57.
2 Manuel Becerra Ramírez holds that "the difference (of positions on this subject) is the product of the legal culture to which one belongs. While for those of us who share the juridical culture of civil law, the idea that international jurisprudence is a decision limited to the concrete case and the parties in the case seems very normal; for those who share the culture of common law, the decisions of the (International Court of Justice) and any international judicial body, especially permanent judicial bodies, are laden with great authority." "Las decisiones judiciales como fuente del derecho internacional de los derechos humanos", en Varios autores, Liber amicorum. Héctor Fix-Zamudio, San José, Costa Rica, Inter-American Court of Human Rights, 1998, vol I, p. 433.
3 The Mexican Senate approved the recognition of the court’s legal jurisdiction –according to Executive Branch’s initiative- on December 1, 1998. The respective instrument was deposited in the General Secretariat of the OAS on the 17th of that same month.
4 Decisions on preliminary pleas are highly important in Inter-American Court of Human Rights jurisprudence and in the development of the international law it has promoted. Pleas are not only relevant, obviously, for the cases in which they come up, "but have been the driving force behind the fact that the Court has made the Inter-American human rights protection system evolve considerably... In (the corresponding rulings) it has interpreted the rules of the Inter-American human rights system and has established clear, solid principles that guide the behavior of all those who might be affected by them; greater legal certainty now exists principally for parties in processes before the Commission and the Court." Reina, Ana María, "Las excepciones preliminares en el sistema interamericano de derechos humanos," en Nieto Navia, Rafael (ed.), La Corte y el sistema interamericano de derechos humanos, San José, Costa Rica, Inter-American Court of Human Rights, OEA-Unión Europea, 1994, p. 440.
5 The resolution on preliminary pleas, which figures in the procedural stage called "written proceedings," is found in article 36.6 of the Rules of Procedure of the Inter-American Court of Human Rights. The Judgment on the merits –the sentence, in the strict sense- decides the controversy; this is referred to in articles 66 to 69 of the Convention and 29,55 and 57 of the previously mentioned Rules. Articles 63.1 of the Convention and 56 of the Rules allude to the resolution on reparations.
6 This standard is found in the reparations sentence handed down in the Castillo Páez Case of November 27, 1998. In the paragraph cited (Para. 38), the court invokes precedents: those of other bodies and the Court itself. With respect to the latter, it cites: Corfu Channel, Merits, Judgment I.C.J. Reports 1949, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, paras. 29-30 and 59-60; Velázquez Rodríguez Case, Judgment of July 29, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988), para. 127; Godínez Cruz Case, Judgment of January 20, 1989, Inter-Am.Ct.H.R. (Ser. C) No. 5 (1989), para. 133, and Fairén Garbi and Solís Case, Judgment of March 15, 1989, Inter-Am.Ct.H.R. (Ser. C) No. 6 (1989), para. 130.
7 Ibid.
8 Ibid, para. 40. The cases invoked are: Paniagua Morales et al, Case, Judgment of March 8, 1998, Inter-Am. Ct. H.R. (Ser. C) No. 37 (1998), para. 76 and Loayza Tamayo Case, Reparations (art. 63(1) American Convention on Human Rights), Judgment of November 27, 1998, Inter-Am. Ct. H.R. (Ser. C) No. 42 (1998). Para. 57.
9 Ibid, Para. 38. Cited here are the rulings on the following cases: Cayara Case, Preliminary Objections, Judgment of February 3, 1993, Inter-Am. Ct. H.R. (Ser. C) No. 14 (1993), para. 63, and Caballero Delgado and Santana Case, Preliminary Objections, Judgment of January 21, 1994, Inter-Am. Ct. H.R. (Ser. C) No. 17 (1994), para. 44.
10 Loayza Tamayo Case, Reparations (art. 63(1) American Convention on Human Rights), Judgment of November 27, 1998, Inter-Am. Ct. H.R. (Ser. C) No. 42 (1998). Para. 38. The Loayza Tamayo Case refers to violations to the rights of liberty and human integrity, as well as different legal guarantees in Peru, to the detriment of María Elena Loayza Tamayo. The international court ordered the liberation of the victim, who was imprisoned when the Judgment of the merits was issued. In the reparations judgment of November 27, 1998, the following judges took part: Hernán Salgado Pesantes (president), Antônio Cançado Trindade (vice-president), Máximo Pacheco Gómez, Oliver Jackman, Alirio Abreu Burelli, Sergio García Ramírez and Carlos Vicente de Roux Rengifo. Secretary: Manuel E. Ventura Robles.
11 Par. 42 of the resolution on preliminary objections in the Cayara case, cit., which is invoked in the resolution on reparations in the Loayza Tamayo Case, Para. 39.
12 The former Court president Héctor Gros Espiell has observed that the criteria established by the Court for this issue is correct, "but the difficult thing is to achieve, in a concrete case, the balance between the objective of justice and the unavoidable duty to respect procedural forms, established precisely to guarantee the rights of the parties and, by following them, the correct interpretation and application of the Convention, and, therefore, compliance with its objective and end." "Los métodos de interpretación utilizados por la Corte Interamericana de Derechos Humanos en su jurisprudencia contenciosa," La Corte y el sistema..., cit. P. 241.
13 The case was a complaint for the torture and disappearance of Efraín Bámaca Velázquez in Guatemala. The evidentiary resolution referred to was made on September 1, 1998, with the intervention of judges Hernán Salgado Pesantes (president), Antônio A. Cançado Trindade (vice-president), Máximo Pacheco Gómez, Alirio Abreu Burelli, Sergio García Ramírez and Carlos Vicente de Roux Rengifo. Secretary: Manuel E. Ventura Robles.
14 The examination of these points corresponds to my Concurring Opinion regarding the resolution of the Inter-American Court of Human Rights of September 1, 1998 in the Bámaca Velázquez Case. This resolution only addressed evidentiary questions, taking into account the parties’ different promotions and allegations.
15 Article 43: "Items of evidence tendered by the parties shall be admissible only if previous notification thereof is contained in the application and in the reply thereto and, where appropriate, in the communication setting out the preliminary objections and in the answer thereto. Should any of the parties allege force majeure, serious impediment or the emergence of supervening events as grounds for producing an item of evidence, the Court may, in that particular instance, admit such evidence at a time other than those indicated above, provided that the opposing party is guaranteed the right of defense."
16 Para. 1 of my Concurring Opinion.
17 The argument in my Concurring Opinion, contained in paragraph 2, is expressed in the following terms: "the evidence offered does not satisfy the basic requirements to make them admissible and effective, in accord with their nature... A true testimonial piece of evidence implies the transmission of knowledge on the part of an individual who gains this knowledge through his or her senses. In this case, the witness is unknown, which is to say that there is no knowledge whatsoever of the source that provides the reports. It should not be adduced that there is a government agency responsible for them, since the admissibility and validity of testimony is accompanied by the possibility of knowing or being able to know in a precise manner, and to interrogate, the individual who makes a statement in the capacity of witness. If the supposed testimony contained in the documents to which this vote referred were to have been accepted, it would be impossible to comply with the categorical provisions of the Rules of Procedure of the Court, such as those contained in articles 41 (Questions Put During the Hearings), 46 (Convocation of Witnesses and Expert Witnesses), 47 (Oath or solemn declaration of the witnesses or experts) and 48 (Objections to Witnesses). I will not omit saying that much of the questioning that is formulated concerning the so-called "faceless judges" could be mentioned in relation to "faceless witnesses."
18 Paras. 13 and 56 of the reparations judgment ruled in this case.
19 The Court’s Rules of Procedure dated September 16, 1996, distinguishes between the "Written Proceedings" stage (Title II, Articles 32 to 38) and the "Oral Proceedings" stage (Title III, Articles 39 to 42). The first begins with the claims and covers the answer to the application and a review of the preliminary objections, in which, however, court proceedings, ruled by the principle of oral proceedings are also carried out and thus call for the hearing authorized by Article 36.6.
20 Para. 56.
21 Para. 57.
22 Article 46.1 of the Convention subjects admission of a petition or communication –by the Commission– to the act "that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law." This requirement is not applicable when there is no due process of law in the domestic legislation for the protection of the violated right, the alleged victim has been denied access to remedies or has been prevented from exhausting them, or there has been unwarranted delay in rendering a final judgment (Article 46.2).
23 Discussion is underway about the Court’s power regarding the admission of the claim. Those who uphold that it should not review decisions made by the Commission in toto –based on the authority explicitly recognized by the court and commonly exercised-. They argue that this interpretation of Article 61.2 "confuses processing with admission and far from offering guarantees to the parties, it further deteriorates the claimant’s position and affects the legal certainty of the system. In practical terms, it gives the State access to a motion for review of the Commission’s decision. This is obviously contrary to law, considering that the claimants are not permitted, for example, to request a review of declarations of inadmissibility." Gómez, Verónica, "Seguridad jurídica e igualdad procesal ante los órganos", in Méndez, Juan E. and Cox, Francisco (eds.), El futuro del sistema interamericano de protección de los derechos humanos, San Jose, Costa Rica, Inter-American Institute of Human Rights, 1998, pp. 233-234.
24 This case openly discusses Peru’s trial and conviction of several Chilean national, sentenced by a "faceless" military tribunal on charges of treason against the fatherland. Included herein is the judgment on the preliminary objections issued on September 4, 1998. The court was composed of Judges Hernán Salgado Pesantes (president), Antônio A. Cançado Trindade (vice-president), Máximo Pacheco Gómez, Oliver Jackman, Sergio García Ramírez, Carlos Vicente de Roux Rengifo and Fernando Vidal Ramírez (judge ad hoc). Secretary: Manuel E. Ventura Robles. The dismissal of the objections was decided by a majority vote, with Judges De Roux Rengifo and Vidal Ramírez dissenting.
25 Para. 54.
26 Para. 30. This lawsuit refers to alleged acts in which Peru arbitrarily detained, tortured and irregularly tried Luis Alberto Cantoral Benavides. The judgment on preliminary objections was issued on September 2, 1998. The court was composed of Judges Hernán Salgado Pesantes (president), Antônio A. Cançado Trindade (vice-president), Máximo Pacheco Gómez, Oliver Jackman, Alirio Abreu Burelli, Sergio García Ramírez, Carlos Vicente de Roux Rengifo and Fernando Vidal Ramírez (judge ad hoc). Secretary: Manuel E. Ventura Robles.
27 Para. 30.
28 Para. 61. The judgment cites an advisory opinion of the Court on this matter: Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) of the American Convention on Human Rights), Advisory Opinion OC-8/87, January 30, 1987, Series A, No. 8, paras. 35 and 42.
29 This matter offers various proposals, including: the concept of effectiveness of domestic remedies, the duty of the States of providing effective domestic remedies, exceptions and limitations on the rule of exhausting and the evidentiary onus about exhausting itself. Cfr. Cançado Trindade, "A regra do esgotamento dos recursos internos revisitada", Liber amicorum. Héctor Fix-Zamudio, cit., vol. I, pp. 19 and ss.
30 Par. 63. The judgment cites: the Velázquez Rodríguez Case, Preliminary Objections, Judgment of June 26, 1987.Series C No. 1, para. 88, 89; Fairén Garbi and Solís Corrales Case, Preliminary Objections, Judgment of June 26, 1987. Series C No. 2, para. 87, 88.
31 Paras. 30-31.
32 Fundación de Ayuda Social de las Iglesias Cristianas (FASIC).
33 Para. 77.
34 Para. 78, citing the Cayara Case, Preliminary Objections, Judgment of February 3, 1993. Series C No. 14, para. 42; Paniagua Morales et al. Case, Preliminary Objections, supra 77, Para. 38; Castillo Páez, Preliminary Objections, supra 56, Para. 34, and Loayza Tamayo, Preliminary Objections, supra 56, Para. 33.
35 This section provides: "Any person or group of persons, or any nongovernmental entity legally recognized in one or more member states of the Organization (of American States), may lodge petitions with the Commission containing denunciations or complaints of violation of this Convention by a State Party."
36 Regarding this and the future jus standi of the individual before the Inter-American Court, compare the detailed Concurring Opinionof Judge Antonio A. Cançado Trindade in connection with this Ruling of Preliminary Objections of the Castillo Petruzzi Case.
37 Para. 65. In this case there were different violations —right to personal liberty, humane treatment, life, effective access to the Courts— to the detriment of Ernesto Rafael Castillo Paez, in Peru. In order to deliver a decision in this, which was issued on November 27, 1998, the Court was integrated by Judges Hernán Salgado Pesantes (president), Antônio A. Cançado Trindade (vice president), Máximo Pacheco Gómez, Oliver Jackman, Alirio Abreu Burelli, Sergio García Ramírez, and Carlos Vicente Roux Rengifo. Secretary: Manuel E. Ventura Robles.
38 Ibidem, para. 66.
39 Paras. 98-99.
40 Para. 56. Regarding the Inter-American Court on Human Rights, it is cited the Matter of Viviana Gallardo et. al. No. G 101/81. Series A, Para 26; Velázquez Rodríguez Case, Preliminary Objections, Judgment of June 26, 1987. Series C No. 1, Para. 88, 89; Fairén Garbi and Solís Corrales Case, Preliminary Objections, Judgment of June 26, 1987. Series C No. 2, para. 87, 88; Godínez Cruz Case, Preliminary Objections, Judgment of June 26, 1987. Series C No. 3, para. 90, 91; Velázquez Rodríguez, Judgement of July 29, 1988. Series C No. 4, para. 109; Castillo Paez Case, Preliminary Objections, Para. 40; and Loayza Tamayo, Preliminary Objections, Sentence of January 21, 1996. Series C No. 25 para. 40.
41 The argument appears in Para. 68 and further says: "It must be remembered that at that stage the State could admit the facts alleged by the complainants, justifiably reject them, or procure a friendly settlement which would avoid the submission of the case to the Court. If the State is not aware of certain facts or particular statements which are later raised in the application, it can not make use of the rights that assist it at that procedural stage."
42 Para. 68, in which it is made reference to the Cantoral Benavides Case, Preliminary Objections, Judgment of September 3, 1998, Series C. No. 40 Para. 46.
43 Para. 45.
44 Para. 46.
45 Para. 96.
46 As to this, see what is stated under XI herein below.
47 Para. 73
48 The aphorism... of jura novit curia (the laws are known to the judge) means plainly and simply that the court is not bound to the mistakes or omissions of the parties and in the search for the law all the roads are open before it." Couture, Eduardo S., Fundamentos del derecho procesal civil, Buenos Aires, Depalma, 1996. p. 286. Calamandrei says that jura novit curia "means that the judge must find ex officio the rule that corresponds to the event, without hoping that the parties show it to him." Elogio de los jueces escrito por un abogado, translation into Spanish by S. Sentis Melendo, Buenos Aires, EJEA, 1969, p.37.
49 The Rodriguez Velasquez Case, Judgment of July 29, 1988. Para. 163, and Godinez Cruz, Judgment of January 20, 1989. Para. 172, are quoted here.
50 Para. 83 of the resolution on the preliminary objections of the Castillo Petruzzi Case.
51 Para. 101.
52 Para. 102.
53 The American Convention on Human Rights (or the San Jose Pact) sets forth this issue in the well known article 63(1) "If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party." This provision could have been more explicit and systematic. Jurisprudence has created the concept of reparation, its forms, scope and characteristics.
54 This case refers to the forced disappearance of Raul Baigorria and Adolfo Garrido, in Mendoza, Argentina. The Government of Argentina acknowledged the rights of the aforementioned persons in the complaint filed by the Inter-American Commission on Human Rights, as well as the legal consequences derived from them. Compare Garrido and Baigorria Case, Judgment of February 2, 1996. Series C. No. 26. Para 27. Consequently, only reparation was pending. Based on the fact that the parties could not agree on the reparation, the Court delivered a judgment of reparation on August 27, 1998. The Court was composed of Judges Hernán Salgado Pesantes (president), Antonio A. Cançado Trindade (vice-president), Máximo Pacheco Gomez, Oliver Jackman, Alirio Abreu Burelli, Sergio García Ramírez, Carlos Vicente de Roux Rengifo, and Julio A. Barberis (judge ad hoc). Secretary: Manuel E. Ventura Robles.
55 Para. 41. Subsequently, the judgment of reparation in the Castillo Paez Case is along the same lines.
56 Para. 42, which makes reference to the Aloeboetoe et al. Case, Reparations (art. 63(1) American Convention on Human Rights), Judgment of September 10, 1993, Series C. No. 15. Para. 44. Also compare the judgment of reparations of the Castillo Paez Case, Para. 49.
57 Para. 50. The Court also cites the following precedents: Aloeboetoe et. al. Case, Reparations, cit., Para. 54; Case The Amparo, Reparations (Art. 63(1) American Convention of Human Rights), Judgment of September 14, 1996, Series C, No. 28, paras. 43 and 46; Neira Alegría et. al. Case, Reparations (Article 63(1) American Convention of Human Rights,) Judgment of September 19, 1996, Series C No. 29, paras. 63 and 65; and Caballero Delgado and Santana Case, Reparations (Article 63(1) American Convention of Human Rights), Judgment of January 29, 1997, Series C, No. 31, paras. 60 and 61.
58 Para. 50.
59 Para. 59 of this judgment.
60 Para. 43. The Court cited several useful precedents, such as: the Ferrocarril de la Bahía de Delagoa Case, La Fontaine, Pasicrisie internationale, Berne, 1902, p. 406; Velázquez Rodríguez Case, Compensatory Damages, Judgment of July 21, 1989 (Article 63(1) American Convention of Human Rights), Series C No. 7, Para. 38; Godínez Cruz Case, Compensatory Damages, Judgment of July 21, 1989 (Article 63(1) American Convention of Human Rights), Series C, No. 8, Para. 36 and Fairén Garbi and Solís Corrales Case, Judgment of March 15, 1989, cit., Para. 136.
61 Para. 74.
62 The topic is still beyond Inter-American Court of Human Rights jurisprudential experience, but it is naturally not so for other national or international realms. Such is the case of the European Court of Human Rights. In view of this, the problem arises, above all, in cases of violations to procedural rights, which allegedly or truly annul, distance or diminish the prospect of a favorable outcome, which would have taken place -the claimant argues- if the violation had not happened: for example, the right to a reasonable term to issue a court ruling, the right to appoint defense counsel, etc. Cfr. Selvadoray, Jonathan, "Pérdida de oportunidad y derechos humanos," Liber amicorum. Héctor Fix-Zamudio, op. cit., vol. II, pages 1401 and following.
63 See infra section XX.
64 Para. 74.
65 Para. 91 of the sentence on reparations of the Castillo Paez case.
66 Para. 93. Making use of its reasoning, the Court made reference to Article 32.1 of the Convention: "Every person has obligations towards the family, the community and humanity."
67 Ibid. The Court cites the Aloeboetoe Case, Reparations, cit., Para. 83.
68 Para. 92.
69 In this sense, it has been pointed out that the "(Inter-American) system does not include any kind of legal help for the claimants who must face high costs and lengthy waits to make themselves heard and to try their case in an international seat." And it has been suggested that "the Court should differentiate between the expenses made by the Commission and those incurred by the victims’ representatives." Gómez, "Seguridad jurídica...," El futuro del sistema..., cit., p. 238. The Court’s judgment in the Garrido Baigorria Case –analyzed herein- has updated this issue and has satisfied, considerably, necessities posed by access to justice.
70 Protocol number 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms decided to dissolve the European Commission of Human Rights and the existence, with ample powers, of the European Court. This court knows the demands directly proposed by individuals. The new European Court was established in November 1998. A summary of the European legal body in light of Protocol number 11 can be found in Petzold, Herbert, "El nuevo Tribunal Europeo de los Derechos Humanos", Liber amicorum. Héctor Fix-Zamudio, cit., vol. II, pp. 1265 and ss.
71 The Court warns in this regard, in the reparations judgment in the Case Garrido and Baigorria: "The acknowledgment of the locus standi of (the victims or their relatives) opens the possibility to incur in expenses derived from such representation." Para. 81.
72 In the past, fees were related to the claimant’s bad faith. Later, civil principles regarding guilt were taken into account. Currently, "the basis of this sentence is the objective fact of defeat (soccombenza); and this institution’s justification is found in that legal action should not mean patrimonial diminution for the party in favor of whom it is made." Chiovenda, José, Principios de derecho procesal civil, translation by José Casais y Santaló, Madrid, Reus, s/f, Vol. II, pp. 452-453. Eduardo Pallares summarizes the dominant doctrine by affirming that fees are "necessary expenses, not superfluous ones, to process and conclude the trial." Fees include lawyers and experts’ fees, as well as travel expenses needed for the development of the procedure, among other concepts. Derecho Procesal civil, 3rd edition, Mexico, Porrúa, 1968, p. 180.
73 The cases of Aloeboetoe, cit. Para. 94; Caballero Delgado y Santana, cit., Para. 47 and court ruling 2; El amparo, cit., para. 21, and Neira Alegría, cit., para. 42.
74 Para. 81.
75 It explicitly points out the mentioned decision: "For the purposes now under consideration, costs also include those incurred for recourse to the domestic courts… and the costs of representation before two international bodies: the (Inter-American Human Rights) Commission and the Court." Para. 81 in fine.
76 Para. 80.
77 Para. 82.
78 Para. 80.
79 Para. 112 states: "It is up to the Court to make a prudent assessment of the specific scope of the costs to which the condemnatory judgment refers, taking into account the verification of those costs, the circumstances of the specific case, to which end the Court shall determine, on the basis of reason and equity, a reasonable sum for the costs incurred by the victim or his representatives and attorneys in proceedings with Peru.
80 Paras. 177-179.
81 Para. 83. In paragraph 82 of this sentence, the Court holds that the quantum should be set on an "equitable" basis. Likewise, it indicates that it is necessary to take into account "the sufficient connection that must exist between those costs and the results achieved" (cfr. Eur. Court H.R., Brincat vs Italy Judgment of November 26, 1992, Series A No. 249-A). Thus, the role private legal assistance truly exercised in the ruling on the payment of costs should be well thought-out.
82 Traditional doctrine on the "margin of valuation" left to the States –in a democratic system, with regards to human dignity– to adapt their domestic system to the obligations derived from international law. As to this point and its immeasurable implications and courses, which naturally include States’ legislative and judicial spheres, cfr. Cançado Trindade, "Reflexiones sobre el futuro del sistema interamericano de protección de los derechos humanos", El futuro del sistema…, cit., Span., pp. 580 and ss.
83 Cfr. Krsticevic, Viviana, "Líneas de trabajo para mejorar la eficacia del sistema", El futuro del sistema..., cit., p. 438. The "incorporation of international obligations in the domestic sphere, as well as the order, reform, adaptation of local legislation constitutes one of the most important guarantees of compatibility between the State’s behavior and that which is set forth in the Convention." Ibid., p. 448.
84 Para. 70.
85 Cfr. García Ramírez, "La jurisdicción interamericana sobre derechos humanos. Actualidad y perspectivas", Revista Mexicana de Política Exterior, No. 54, June 1998, pp. 136-137.
86 Para. 71. The difference between the obligation of compensating and the obligation of punishing is evident in noting that the victim can waive the compensation owed to him or her, but cannot absolve the State of the duty to pursue the person responsible (unless it is a crime pursuable at the request of the victim). In other words "the reparation provided for in Article 63(1) [of the American Convention] is an attempt to erase the consequences that the unlawful act may have had for the affected person, his family or close friends." Meanwhile, "The State’s obligation to investigate the facts and punish those responsible does not erase the consequences of the unlawful act in the affected person. Instead, the purpose of that obligation is that every State party ensure, within its legal system, the rights and freedoms recognized in the Convention." Para. 72.
87 Germán J. Bidhart Campos writes: "It can well be said that the international right of human rights and its counterpart in suprastate jurisdiction demands the ‘result’ of the effectiveness of rights from member States of the system, as it does with the parallel obligation of preventing, investigating, punishing and redressing violations, which authorizes it to speak of ‘obligations of result’ and not of ‘obligations of means’." "Hierarchy and priority of norms in an international human rights system," Liber amicorum. Héctor Fix-Zamudio, cit., Vol. I, p. 460.
88 Para. 90 of the Judgment of November 3, 1997.
89 Para. 70.
90 Para. 105.
91 Para. 106. Also in the cited judgment on the merits of the Castillo Paez Case, Para. 106; in the Suarez Rosero Case, Judgment of November 12, 1997. Series C, No. 35, Para 35; and in the reparations judgment in the Loayza Tamayo Case, Para. 169.
92 Article 1(1) of a general nature, obligates the States –who undertake the obligation, on behalf of the parties to the Convention– to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms. Article 8 contains various legal guarantees. Article 25 sets forth the right to simple and prompt recourse to a competent court for protection against acts that violates one’s fundamental rights.
93 Para. 107. The precedent made up of the judgment of the Paniagua Morales et.al. Case, cit., Para. 173, is cited.
94 Both judgments are dated November 27, 1998. Pursuant to Loayza Tamayo Case, cfr. Paras. 168-171.
95 Paras. 4 and 6 of Concurring Opinion.
96 Cfr. Progress report on the Question of the Impunity of Perpetrators of Human Rights violations, prepared by Mr. Guissé and Mr. Joinet, pursuant to Sub-Commission resolution 1992/23. E/CN.4/Sub.2/1993/6, para 1.
97 Para. 9 of Concurring Opinion.
98 Also see, Norris, Robert E., "Leyes de impunidad y los derechos humanos en las Americas. Una respuesta legal," Revista IIDH, No. 15, Jan-Jun 1992, spec. pp. 99 and ss.
99 Section XX.
100 Beyond acknowledging the victim’s right to obtain reparation, issue on which doctrine is passive, it happens that the fight against impunity, among other information in legal evolution, has encouraged new advances. In reference to this, Juan E. Méndez writes; "from the fight against impunity that has been carried out on our continent over recent years, the notion that the victim also has the right to truth and justice, an essential correlation of the State’s obligation to investigate the facts, disclose them to society, try and punish those responsible and redress damages begins to be considered". "La participación de la víctima ante la Corte Interamericana de Derechos Humanos", La Corte y el sistema..., cit., p. 332.
101 Para. 3 of Voto Razonado Conjunto.
102 Para. 4, ibid.
103 Cançado Trindade and Abreu Burelli, in their Joint Concurring Opinion, cit. Para. 12.
104 Para. 147 of the judgment.
105 In his Partially Dissenting Opinion, Judge De Roux Rengifo poses two warnings to limit the scope of this issue: "Not every change in an individual’s circumstances merits indemnification. To warrant compensation, they must be very substantial changes that, for example, profoundly alter the affective and spiritual milieu in which the life of the family unfolds, or cuts short a professional career into which great effort and dedication have been poured. When determining the degree to which an individual’s circumstances have changed and, more specifically, the damage to his personal life plan, certain extremes have to be avoided, such as believing that the victim will remain forever entrapped in inertia or desperation, or depicting his condition as a kind of eternal tragedy. Particular care must be taken to weigh this aspect of the issue when establishing, based on principles of equity, the amount of the respective compensation."
106 Para. 148.
107 Para. 149.
108 Para. 150.
109 Para. 151.
110 Judges Cançado Trindade and Abreu Burelli’s Joint Concurring Opinion states: "A life plan fully embraces the 1948 American Declaration ideal of exalting the spirit as a supreme end and maximum category of human existence. Damage to a life plan ultimately threatens the sense (underlined in the Opinion) itself that each human being attributes to his or her existence. When this happens, damage is caused to the most intimate part of a human being: be it damage endowed by independence itself that affects the spiritual sense of life." Para 16. Furthermore: "The entire chapter of reparations for violations of human rights should, in our opinion, be compensated from the perspective of the entirety of the victim’s person and keeping in mind his fulfillment as a human being and the restoration of his or her dignity." Para. 17.
111 The Court expressed that "neither case law nor doctrine has evolved to the point where acknowledgment of damage to a life plan can be translated into economic terms. Hence, the Court is refraining from quantifying it." Judge De Roux Rengifo did not share this opinion and wrote his Dissenting Opinion, cit.