3
International Humanitarian Law5. Such obligation of guaranteeing is reinforced, in
Article 1(1) of the American Convention, by the additional qualification of the principle
of non-discrimination. In the present case, in order to consider as definitive the
condemnations of the national contentious-administrative jurisdiction (a hypothesis that
we do not accept), one would have to determine whether such condemnations have
effectively contributed to put an end to impunity, in order to secure the non-repetition
of the wrongful acts, and to guarantee the free and full exercise of the rights protected
by the Convention. In the present case, this requires demonstration.
10.
Our position coincides, moreover, with the international case-law in this respect,
which has considered civil responsibility as insufficient to fulfill the requirements of
international protection. Thus, in the case Yasa versus Turkey (Preliminary Objections
and Merits, Judgment of 02.09.1998), for example, a chamber of the European Court of
Human Rights pondered that
"an administrative-law action is a remedy based on the strict liability of the State,
in particular for the illegal acts of its agents, whose identification is not, by definition, a
prerequisite to bringing an action of this nature. However, the investigations which the
Contracting States are obliged (...) to conduct in cases of fatal assault must be able to lead
to the identification and punishment of those responsible (...). That obligation cannot be
satisfied merely by awarding damages (...). Otherwise, (...) the State's obligation to seek
those guilty of fatal assault might thereby disappear"6.
11.
In the same line of reasoning, in the case Kaya versus Turkey (Preliminary
Objections and Merits, Judgment of 19.02.1998), a chamber of the European Court of
Human Rights decided that the violation of a right protected by the Convention could
not be remedied exclusively by the establishment of civil responsibility (and the
payment of compensation to the relatives of the victim)7. And, in the case Ergi versus
Turkey (Preliminary Objections and Merits, Judgment of 28.07.1998), a chamber of the
European Court decided that, although there did not exist substantial evidence that the
security forces had caused the death of the victim, the State failed in its duty of
protection of the right to life of the victim, taking into account the conduct of the forces
of security and the lack of an adequate and effective investigation, - and, accordingly, it
incurred into a violation of Article 2 of the European Convention8.
12.
In securing the duty of control which the State ought to exert over all its organs
and agents in order to avoid successive violations of the rights conventionally
protected, the thesis of the objective responsibility of the State (engaged as from the
violation of its international obligations) is, in our understanding, the one which most
2(1) and 38(1).
5.
V.g., the four Geneva Conventions of 1949 on International Humanitarian Law (Article 1) and the
Additional Protocol I of 1977 to these latter (Article 1(1)).
6.
European Court of Human Rights (Chamber), Yasa versus Turkey case, Judgment of 02.09.1998, Reports of
Judgments and Decisions, n. 88, p. 2431, paragraph 74.
7.
Paragraph 105 of the Judgment referred to.
8.
European Court of Human Rights (Chamber), Ergi versus Turkey case, Judgment of 28.07.1998, Reports of
Judgments and Decisions, n. 81, p. 1779, paragraphs 85-86.