CONCURRING OPINION OF JUDGE SERGIO GARCÍA RAMÍREZ IN THE
JUDGMENT ON REPARATIONS DELIVERED IN THE BARRIOS ALTOS CASE
(CHUMBIPUMA AGUIRRE ET AL. V. PERU)
1.
I join my colleagues who voted for the judgment on reparations in the Barrios
Altos Case (Chumbipuma Aguirre et al. v. Peru). I believe, however, that a number
of clarifications and observations on the principles underlying the Court’s judgment
and its scope are in order.
2.
The reparations judgment delivered in this case helps settle a number of
issues that this very pertinent case raises. The judgment on the merits was based
on case law developed in the important judgments delivered in the Loayza Tamayo
Case (IACtHR, Judgment of September 17, 1997, Series C, N. 33) and Castillo Páez
Case (IACtHR, Judgment of November 3, 1997, Series C, N. 34), which introduced
groundbreaking jurisprudence in the assessment of what I have called the State’s
“criminal justice duty” (cf. García Ramírez, “Las reparaciones en el sistema
interamericano de protección de los derechos humanos”, in Estudios jurídicos.
Instituto de Investigaciones Jurídicas, UNAM, México, 2000, pp. 438-440; see also,
in Jornadas J. M. Domínguez Escovar en homenaje a la memoria del R. P. Dr.
Fernando Pérez-Llantada (S. J.): Los derechos humanos y la agenda del tercer
milenio, Caracas, 2000, pp. 601 et seq.; and El sistema interamericano de protección
de los derechos humanos en el umbral del siglo XXI. Memoria del Seminario.
November 1999, Inter-American Court of Human Rights, San Jose, Costa Rica, 2001,
pp. 129 et seq.), which the “self-amnesty” laws violate. This was the Court’s finding
in those judgments, which I elaborated upon in my concurring opinions thereon.
3.
In the present case, the Court had before it a reparations “Agreement”
concluded between the material parties (the State and the victims or their next of
kin), with the Inter-American Commission on Human Rights acting as a formal or
only procedural party. Clearly, the agreed upon reparations –like any reparations
the Court might order absent an agreement- concern the victims’ legal assets
(pecuniary or non-pecuniary). It is also self-evident that the nature and ineluctable
function of the Inter-American Commission – which it discharges through various
procedural acts- is to ensure the observance of those norms that protect human
rights and to work for the system that protects them, irrespective of –and without
prejudice to- the satisfaction owed to the parties who are direct beneficiaries of
reparations (victims or, as appropriate, their legal heirs).
4.
The Agreement between the parties, which was submitted after the deadline,
is a formula that the two sides themselves worked out on the various reparationsrelated issues in this case. It was put together and cultivated through a succession
of steps (first on the part of the material parties, and then on the part of the formal
or only procedural party), and settles the potential dispute over the reparationsrelated obligations and entitlements that are a consequence of the violation of
human rights.
It obviates –in principle- the need for the Court to exercise
contentious jurisdiction, which at this phase in the proceedings would be a sentence
of condemnation ordering the State to make specific reparations, based on the
Court’s findings as regards the specific rights violated, as spelled out in the
Judgment on the merits.
5.
The fact that the agreement was submitted after the deadline does not make
it any less effective for purposes of the present case. At the time the agreement was
introduced into the case, the Court had not yet conducted any proceedings to settle