CONCURRING OPINION OF JUDGE SERGIO GARCÍA RAMÍREZ IN THE
JUDGMENT ON REPARATIONS IN THE BÁMACA VELÁSQUEZ CASE
1.
Restitutio in integrum
In the section setting forth the legal grounds on which it is based (para. 39), the
judgment referred to in this opinion indicates once again that, “whenever possible,
the reparation of the harm caused by the violation of an international obligation
requires full restitution (restitutio in integrum), which consists in re-establishment of
the previous situation”.
In this respect, it should be recalled that, for a long time, international jurisprudence
and doctrine have understood that restitutio in integrum is the perfect form of
reparation and that only when this restitutio is not viable, should other measures of
reparation be ordered. The Inter-American Court has repeatedly followed this course
in many decisions. I consider it advisable to abandon references to restitutio once
and for all; although it may be an ideal target for reparations, it does not correspond
to a truly attainable goal. Thus, in my opinion, there is no sense insisting that “the
reparation requires full restitution, if possible.”
Restitutio in integrum signifies, strictu sensu – and this is also its literal meaning –
restitution of matters to how they were before the unlawful conduct occurred and the
legal rights of certain persons were affected. This is what is said and meant when
speaking of “full restitution”, which is not merely simple restitution, which is
inevitably partial and relative. Full restitution – which implies full return – is
conceptually and materially impossible.
When there is a concern that a crime or an unlawful act will be committed,
preventive measures should be taken to avert harm or eliminate danger. However,
the crime or unlawful act – whether it is committed or remains at some point of the
implementation process – implies an irreversible alteration that no restitutio can
ignore or suppress. This is clearly seen should a person die, but it also occurs in
others circumstances; thus, in the case of deprivation of freedom, this is usually
referred to as an eminently reparable measure. In such a case, it is feasible to give
the individual back his enjoyment of freedom, but not to return his lost freedom or,
in other words, allow him to return to a time before the moment in which the loss
occurred. To do this would be much more than legal remedy: it would be a miracle.
The same can be said of the deterioration of a person’s health, which can be cured,
or of the destruction of an object, which can be substituted.
When all is said and done, restitutio only represents a reference point, an ideal
target, in both meanings of the word: an idea and an unattainable goal. The
intention – or rather, the only possible objective – is not so much to integrally
restore the situation that existed before the violation – modified forever in time,
space, characteristics, absolute continuity – but to establish a new situation that is
as similar as possible to the preceding one. It is to that end that elements of
reparation,
compensation,
satisfaction,
retribution,
freedom,
complement,
substitution, etcetera, are factors in the matter. In this way, the victim’s legal rights
are regained, at least partially, and he is placed in a very similar position to the one
he had before. However, what he has lost is lost forever. The compensation