– erroneously, in my opinion – that compliance with domestic law supposes that this can
establish, on its own, the scope of the intervention that could result in a denial of effective
intervention and a return to symbolic participation; and this, in effect, implies the exclusion
of the person who is the substantive party – a party in the substantive connection created
by the offense – although not necessarily a procedural party, with the capacity to act The
extreme example of this converts the victim into a stranger or, at most, a witness in his
own case. I will return to this matter in another paragraph of this opinion.
19.
The Court’s case law needed to define further the form of the victim’s participation in
the domestic proceedings, without reaching the point where it empowered him to conduct
the criminal action – a matter that must be regulated in the domestic sphere; in other
words, without granting him the capacity of a full party in the proceedings, displacing the
Prosecutor General’s office or being a party with the latter in the prosecutorial function it
has traditionally performed in numerous countries and for an extensive series of offenses.
In the judgment in the case of Valle Jaramillo et al., which this opinion, accompanies, the
Court makes headway in establishing a reasonable and effective profile for the victim’s
participation, which gives effect to the right that inter-American case law has recognized to
him for some time.
20.
The Court’s judgment in this case specifies, with sufficient precision, the activities
that the victim and his representatives (whether or not they are next of kin) can carry out in
the proceedings. Thus, it chooses to refer to each sector of activities, instead of using, as it
has until now, more general terms that may be ambiguous and not clarify, as necessary in
the case of procedural actions, their content, the moment when they occur, their possible
consequences (according to their nature), etc. It alludes to “submit pleas and motions,
receive information, offer evidence, formulate arguments and, in brief, assert their
interests.” It is thus that the very general phrase used by the Court: “full access and
capacity to act” is given substance – and practical applicability. There is, evidently, a
reference point for these activities, which I will refer to below, which embodies the victims’
rights and helps to explain their significance and purpose to the interpreter and the enforcer
of the law, and which should be taken into consideration when assessing its meaning and
pertinence: access to justice (in the sense of Article 8(1) of the Convention), knowledge of
the truth, and fair compensation (para. 233), as I stated above.
21.
According to this paragraph 233 of the judgment, which establishes basic principles
in this regard, the victim – and his representatives – may submit pleas and motions, offer
evidence and formulate arguments; in other words, they may request what they need to
meet their interests, draw the court’s attention to matters relating to this, and ask for the
corresponding rulings. These powers should not be confused with conducting the criminal
action, although this could be placed in the hands of the victim, if national law so decides,
based on certain internal decisions relating to criminal policy that have consequences for the
procedural system.
22.
Moreover, victim and representatives can receive information – and not merely “be
pending,” passively, on information that others decide to give them. To the contrary, they
can require it in the exercise of procedural powers – on substantive and procedural aspects
of the proceedings in which they are actors. They can also offer evidence: it is understood
that this is offered in order to support their participation, and thus the evident relevance of
any admissible probative elements that help prove facts and responsibilities before the
different authorities who intervene in the proceedings and whose decisions influence their
development and conclusion. They are authorized to formulate arguments; that is, to state
their position on the facts and the latter’s legal significance, which includes the pertinence of
the prosecution and the legal consequences of the offense committed – if applicable. And