reasonableness, the adverse effect of the duration of the proceedings on the judicial
situation of the person involved in it must be taken into account; bearing in mind, among
other elements, the matter in dispute. If the passage of time has a relevant impact on the
judicial situation of the individual, the proceedings should be carried out more promptly so
that the case is decided as soon as possible” (para. 155). This progress in inter-American
case law paves the way towards new modifications on an important issue that is submitted
with increasing frequency. The high incidence of this issue in the cases submitted to the
consideration of the European Court of Human Rights should also be recalled.
II.
The victim’s role in the proceedings
15.
I am not referring here to the procedural activity of the victim in the international
proceedings based on possible human rights violations, but rather to his participation or that
of his representatives – the procedural legitimation – in the domestic proceedings to
investigate the violations perpetrated, which lead to the identification of those responsible,
the respective prosecution, and the corresponding judgment. The Inter-American Court has
often dealt with this legitimation and has reminded the States of the pertinence, pursuant to
the American Convention on Human Rights, of providing opportunities for the victim to
intervene in the domestic proceedings leading to compliance with what has been called the
“obligation to provide justice” – inherent in the State’s obligation to ensure the exercise of
human rights (Article 1(1) of the American Convention) – which has special relevance as
regards criminal justice, although it evidently includes, or may include, other types of
justice (disciplinary, administrative or civil).
16.
If we examine the Court’s case law on this matter, we will conclude that the victim’s
participation, invoked by the Court, is based on the right of access to justice and to judicial
protection (embodied in Article 8(1) of the Pact of San José) – a right that corresponds to
everyone and, in particular, to those for whom a legally-protected interest or right to which
they are entitled has been violated unfairly – in order to determine their rights, and also, if
applicable, any obligations they may have. The procedural participation (lato sensu) of the
victim (or his representatives) reflects the victim’s right to know the truth about what
happened; that is, the conditions or characteristics of the violations perpetrated and the
corresponding responsibilities, and these are the object of the domestic investigation. It also
includes the victim’s right to reparation of the damage caused. In brief, the justification for
the victim’s participation is threefold, and this has now been specifically included in the
judgment in the case of Valle Jaramillo et al.: “access to justice, knowledge of the truth
about what happened, and obtaining fair reparation” (para. 233).
17.
This same examination of inter-American case law on the matter, allows us to see
that the Court has understood that this participation by the victim – in other words, the
scope of his legitimation – must be expanded and adapted to domestic law and international
law. Evidently, domestic provisions must be compatible with the guiding principles of
international human rights law, which the State has undertaken to comply with by means of
an explicit sovereign decision, in the terms of Articles 1 and 2 of the American Convention.
After all, we are dealing here with concentric circles of protection or concurrent elements in
the establishment of a single procedural framework.
18.
Nevertheless, in my opinion, our case law has not been sufficiently precise about the
required content and characteristics of the victim’s procedural intervention. It must
obviously be broad-ranging as I have mentioned, and not insignificant, symbolic, ineffective
and illusory – a minimization resulting from an extreme version of the punitive powers of
the State with its powers to exclude extended to all procedural acts – and must be subject
to the domestic legal system and to international precepts. At times it has been understood