CONCURRING SEPARATE OPINION OF THE JUDGE AD-HOC ÁLVARO CASTELLANOS HOWELL I fully concur with the judgment issued by the Inter-American Court of Human Rights in the case of Tiu Tojin v. Guatemala. As a result of the fact that this Court, pursuant with its attributions and jurisdictional competence, has as its supreme goal to internationally and effectively shelter and protect human rights, after the corresponding deliberation, I have voted in favor of the adoption of said judgment without any reservation in this sense in my conscience. The facts proven as well as the violations acknowledged by the State of Guatemala, define the grave transgression of the human rights identified in paragraph 54 of that judgment committed against the victims also identified therein. Even more so, as also expressed in the judgment (paragraph 91), the prohibition of the forced disappearance of people and the corollary duty to investigate it and, in its case, punish those responsible, have the nature of jus cogens. Therefore, as Judge adhoc I find myself in the obligation to specify, below, some personal reflections derived from my participation in the hearing, deliberation, and unanimous resolution of the case sub-judice. A.- Continuance of the hearing of the case, despite the acknowledgment of international responsibility by the State of Guatemala. In section IV of the Judgment a detailed examination of the consequences or scope said acknowledgment shall have in relation to the possibility of an anticipated termination of the proceedings pursuant with Articles 53, 54, or 55 of the Rules of Procedure of the Inter-American Court of Human Rights was carried out. As can be determined in that section, the State of Guatemala’s attitude is highly appreciated not only with regard to its acknowledgment of international responsibility, but also with regard to the unconditional acquiescence made during the processing of the 1 present case and of the positive acts performed even after the hearing. Despite the aforementioned, since there is still a clearly acknowledged and proven denial of justice in this case, and up to now the legal responsibilities against the planners and perpetrators of the crime of forced disappearance […] of María Tiu Tojín and her daughter Josefa has not been attributed, the Court has correctly decided to “precise the grounds of the obligation to investigate the facts of the forced disappearance of María Tiu Tojín and Josefa Tiu Tojín and refer to the legal and factual obstacles that have prevented its compliance within the framework of the transition towards democracy in Guatemala.” 2 Thus, the case was not dismissed or finalized, but instead its continuance was decided. As Judge ad-hoc I would like to especially point out one of the reasons why I agreed with this decision. The InterAmerican Commission of Human Rights (“the Commission”) requested that despite the acknowledgment and acquiescence by Guatemala, instead of dismissing the case, it will issue a judgment on merits considering the facts as established “based on the importance the establishment of an official truth of the facts has for the victims of violations of human rights and in this case for Guatemalan society as a 3 whole.” The undersigned wishes to especially point out, the right to know the material truth as part of the right to a fair trial: “The Court has previously established that the right to truth is included within the right of the victim or their next of kin to obtain from the State’s competent bodies the explanation of the violating facts and the corresponding responsibilities, through the investigation and 4 prosecution that result from Articles 8 and 25 of the Convention.” It is also 1 See paragraph 20 of the Judgment. See paragraph 29 of the Judgment. 3 See paragraph 25 of the Judgment. 4 Cfr. Case of Almonacid Arellano et al. v. Chile. Preliminary Objections, Merits, Repartions, and Costs. Judgment of September 26, 2006. Series C No. 154, para. 148. 2