7
17.
At the public hearing of 07 September 1996 before the Court, the Colombian
Government itself referred clearly to the matter at issue in two moments (alluding
even to national initiatives for the revision of Law 15 of 1992 on habeas corpus), 14
indicating that "there [was] no divergence" between itself and the Inter-American
Commission in respect of the subject of habeas corpus.15 Moreover, in its brief of
26 July 1996, the Government informed the Court inter alia that it was "progressing
with the initiatives tending to place once again before Congress" the text of the
Inter-American Convention on Forced Disappearance of Persons, as well as to
incorporate that category of crime into its domestic criminal legislation. 16 I thus see
no reason for the Court not to consider the request of the Commission 17 for nonpecuniary measures of reparation.18 In the present Judgment on reparations, the
Court has failed to extract the juridical consequences of its own determination of
violation of Article 1(1) (in combination with Articles 7 and 4) of the American
Convention on Human Rights, to which it devoted no less than five paragraphs in its
Judgment on the merits.19
18.
In one of those paragraphs, in the aforementioned Judgment on the merits
(of 08 December 1995) in the present Caballero Delgado and Santana case, the
Court in fact linked its determination of non-compliance by the respondent State
with the general obligation of Article 1(1) of the Convention to the measures of
reparation (paragraph 59).20 That was not the first time in which the Court acted
this way: in previous cases, the Court determined that the general duty to
guarantee the protected rights implies the obligation of the States Parties to
organize all the structures of public power in order to secure juridically the full
14
Mentioned in paragraph 54 of the present Judgment.
15
Verbatim Records of the Public Hearing Held by the Inter-American Court of Human
Rights on 07 September 1996 - Caballero Delgado and Santana Case, Phase of Reparations,
pp. 31 and 15.
16
Page 4 of the aforementioned brief.
17
And of the petitioners in the case on behalf of the victims.
18
It may be recalled, in this connection, that, in the cases concerning Honduras
(merits), the Court, in determining the inadequacy and ineffectiveness of the remedy of
habeas corpus in the cases of forced or involuntary disappearances at issue, in a way revised
the formal "requirements" of the national law, demonstrating their insufficiencies. Cf.
Velásquez Rodríguez Case, loc. cit. supra n. (1), paragraphs 65-77; Godínez Cruz Case, loc.
cit. supra n. (1), paragraphs 68-82.
19
Paragraphs 55 until 59, besides operative paragraph n. 1 of the Judgment on the
merits, of 08 December 1995, in the present Caballero Delgado and Santana case.
20
Besides having determined the violation of Article 1(1) of the Convention (paragraph
59, and operative paragraph n. 1 of that Judgment), the Court pondered that "to guarantee
fully the rights recognized by the Convention, it is not sufficient that the Government
undertakes an investigation and tries to sanction those guilty; rather it is also necessary that
all this activity of the Government culminates in the reparation to the injured party, which in
this case has not occurred" (paragraph 58). And the Court added that "in the present case
the reparation ought to consist in the continuation of the judicial proceedings to inquire into
the disappearance of Isidro Caballero-Delgado and María del Carmen Santana and the
punishment of those responsible in accordance with Colombian domestic law" (paragraph
69).