5
unlike the corresponding Article 50 of the European Convention on Human Rights, 7
Article 63(1) of the American Convention makes no reference to domestic law, thus
enabling the Inter-American Court to proceed to the determination of the measures
of reparation on the basis - autonomously - of the American Convention itself and of
the applicable general principles of International Law. Secondly, unlike Article 50 of
the European Convention, Article 63(1) of the American Convention does not limit
itself to provide for "just satisfaction" (satisfaction équitable/satisfacción
equitativa); the American Convention goes further, to provide both for "just
satisfaction" as a measure of reparation, as well as for the duty to ensure the
enjoyment of the protected rights. Thirdly, Article 63(1) of the American
Convention, in providing for the duty to ensure, refers to the injured party whose
rights have been violated: in my understanding, the term "injured party" covers
both the direct victims of human rights violations as well as the indirect victims
(their relatives and dependents), who also suffer the consequences of such
violations.
13.
Since its earliest contentious cases on reparations (Velásquez Rodríguez and
Godínez Cruz), the case-law of the Court has focused above all on the element of
the "just compensation" as a measure of reparation, curiously making abstraction of
the duty to ensure or guarantee in the present context, likewise enshrined in Article
63(1) of the American Convention. The time has come to link that duty to the "just
compensation", as stipulated in Article 63(1). Such duty comprises all measures including legislative measures - which the States Parties ought to take in order to
afford the individuals under their jurisdiction the full exercise of all the rights
enshrined in the American Convention. Accordingly, in the light of the provision of
Article 63(1), I understand that the Court should proceed to the determination of
both the indemnizations as well as the other measures of reparation resulting from
the duty to ensure or guarantee the enjoyment of the rights that were violated. The
interpretation which I uphold is the one which seems to me to be in full conformity
with the objective character8 of the conventional obligations contracted by the
States Parties to the American Convention.
14.
For the reasons here expressed, I am unable to concur with the
determination by the Court, in operative paragraph n. 3, and its criteria, in
paragraphs 55-57, of the present Judgment, to the effect that it is not possible to
consider the request by the Inter-American Commission on Human Rights9 (of 10
May 1996), to proceed, as one of the measures of non-pecuniary reparation
7
Article 50 of the European Convention provides: - "If the [European] Court finds that
a decision or a measure taken by a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict with the obligations arising from the
present Convention, and if the internal law of the said Party allows only partial reparation to
be made for the consequences of this decision or measure to be erased, the decision of the
Court shall, if necessary, afford just satisfaction to the injured party."
8
Acknowledged in the Court's case-law itself: The Effect of Reservations on the Entry
into Force of the American Convention on Human Rights (Arts. 74 and 75), Advisory Opinion
OC-2/82, of 24 September 1982, Series A, n. 2, paragraphs 29-31; Restrictions to the Death
Penalty (Arts 4.2 and 4.4 American Convention on Human Rights), Advisory Opinion OC3/83, of 08 September 1983, Series A, n. 3, paragraph 50. Human rights treaties are
oriented towards guaranteeing the enjoyment of the protected rights, rather than
establishing a balance of interests between States; "Other Treaties" Subject to the Advisory
Jurisdiction of the Court (Art. 64 American Convention on Human Rights), Advisory Opinion
OC-1/82, of 24 September 1982, Series A, n. 1, paragraph 24.
9
Making its own the request of 07 May 1996 of the petitioners in the case on behalf of
the victims.