JOINT SEPARATE OPINION OF
JUDGES A.A. CANÇADO TRINDADE AND M. PACHECO GÓMEZ
1.
We have participated of the consensus in the adoption of the present Judgment
on the merits delivered by the Inter-American Court of Human Rights in the case Las
Palmeras, concerning Colombia, for having established the violations of Articles 4, 8(1)
and 25(1) of the American Convention on Human Rights (and, in our view, in relation to
Article 1(1) of it). Nevertheless, we feel obliged to leave on the records our reflections
pertaining to the questions of substance dealt with by the Court, and particularly to our
insatisfaction with the drafting of resolutory point n. 1 of the present Sentence. We
would have preferred that this resolutory point, in order to follow the line of the
jurisprudential evolution of this Court, would have had the following drafting:
"The Court declares that the State is responsible for the violation of Article 4 of
the American Convention on Human Rights, in relation to Article 1(1) of it, to the
detriment of Mr. Artemio Pantoja Ordóñez, Mr. Hernán Javier Cuarán Muchavisoy, Mr.
Julio Milciades Cerón Gómez, Mr. Wilian Hamilton Cerón Rojas and Mr. Edebraíz Norverto
Cerón Rojas, as expressly recognized by the State in the proceedings before this Court".
2.
In our understanding, it is indispensable that the Inter-American Court itself
determines the international responsibility of the State under the American Convention,
without it being necessary to make a renvoi to decisions of national tribunals.
Moreover, in the present case the State itself adopted a positive attitude in the
proceedings before this international Tribunal, taking the initiative of recognizing its
international responsibility under Article 4 of the American Convention, both in its
counter-memorial (of 15.12.1998) 1 and in the public hearing of 28.05.2001 before this
Court 2.
3.
The responsibility of the State in domestic law does not necessarily coincide with
its responsibility in international law. In the cas d'espèce, the two sentences of the
Chamber of the Administrative Contentieux of the Consejo de Estado constituted a
positive step, in having declared, respectively, the patrimonial responsibility of the
State for the death of Artemio Pantoja Ordóñez and Hernán Javier Cuarán Muchavisoy
(sentence of 14.12.1993), and the administrative responsibility of the State for the
death of Julio Milciades Cerón Gómez, William Hamilton Cerón Rojas and Edebraíz
Dimas Cerón Rojas (sentence of 15.01.1996). Nevertheless, in the light of the
American Convention, the decision of the contentious-administrative national
jurisdiction does not appear to us sufficient, and even less definitive.
4.
In principle, the res judicata in domestic law is not binding on an international
tribunal like the Inter-American Court. It is incumbent upon this latter to determine
motu propio the responsibility of the State Party for violation of the American
Convention, an international treaty. The Court cannot abdicate from such
determination, not even in the hypothesis that the decision of a national tribunal is
entirely coincident with its own as to the merits. Otherwise, this would lead to a total
1.
For the death of Mr. Artemio Pantoja Ordóñez, Mr. Hernán Javier Cuarán Muchavisoy, Mr. Julio
Milciades Cerón Gómez, Mr. Wilian Hamilton Cerón Rojas and Mr. Edebraíz Norverto Cerón Rojas (doc. cit., p.
23).
For the death of Mr. NN/Moisés; Inter-American Court of Human Rights (IACtHR), Transcripción de la
Audiencia Pública sobre el Fondo en el Caso Las Palmeras Realizada en la Sede de la Corte el 28 de Mayo de 2001, p. 3 (restricted
circulation).
2.