CONCURRING OPINION OF JUDGE CECILIA MEDINA
I agree with the Court’s decision that Articles 5(1), 22 and 21 of the American Convention
have been violated, all in relation to Article 1(1) thereof, and also Articles 8(1) and 25 of the
Convention. Nevertheless, I have prepared this opinion because I consider that, in the
judgment, the Court failed to declare that Article 4 had also been violated, based on the
State’s failure to comply with its obligation to investigate the deprivation of life that
occurred owing to the massacre that took place in Moiwana in 1986. Furthermore, it did not
note that Article 5 had been violated, also due to the State’s failure to comply with its
obligation to investigate these facts, but in relation to personal integrity.1 In my opinion,
then, the omission of Article 4 left the violation of Articles 8 and 25 of the Convention
unsubstantiated.
First, I would like to establish the general premises for this position and, then, refer to the
specific case that is the subject of this judgment.
With regard to the general premises:
1. The American Convention establishes the obligation of the State to respect and
guarantee the human rights recognized therein. The obligation to guarantee, which is
relevant in this opinion, “is not exhausted by the existence of norms designed to make
compliance with this obligation possible, but requires governmental conduct that ensures
the genuine existence of an effective guarantee for the free and full exercise of human
rights.”2 With these words, the Court establishes the notion that it is obligatory for the
States Parties to implement actions designed to comply with this provision.
Since the obligation to guarantee refers to specific rights, it is complied with in
different ways according to the right that is the object of the guarantee.
2. In my opinion, and I believe that it is the Court’s case law as well, the obligation to
investigate, which the Court has mentioned consistently in cases where violations of Articles
4 and 5 of the Convention have occurred, derives from the general obligation of the States
Parties to guarantee these two rights – in other words, from Article 1(1) of the Convention
read in conjunction with Articles 4 or 5 thereof. The grounds supporting this position can be
found from the inception of the Court’s jurisprudence and have prevailed to date.3
3. Moreover, based on the above, it is evident that the obligation to investigate can only
be demanded with regard to a substantive right that must be protected. The Court has
regularly recognized the essential link between the obligation to guarantee, and
consequently to investigate, and the respective right that must be guaranteed.
1
In the case of Article 5, in addition to the lack of investigation into violations of integrity that
occurred during the massacre, there were other allegations regarding violations related to events that
took place after the massacre, on which the Court did rule (see paras. 90 to 103)
2
Ibid, para. 167.
3
Cf. Case of Velásquez-Rodríguez. Judgment of July 29, 1988. Series C No. 4, paras. 166 to
177.
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