6
1.
If the Court finds that there has been a violation of a right or freedom
protected by this Convention, the Court shall rule that the injured party be ensured the
enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that
the consequences of the measure or situation that constituted the breach of such right or
freedom be remedied and that fair compensation be paid to the injured party.
The reasoning of the Court on the subject of reparations is even weaker as it
continues. Paragraph 69 of this Judgment states that "[i]n the instant case
reparations should consist of the continuation of the judicial proceedings for the
clarification of the disappearance of Isidro Caballero-Delgado and María del Carmen
Santana and punishment in conformance with Colombian domestic law," which it
then orders in the Resolutions of the Court. Interpreted strictly, one must conclude
that the Court charges the Colombian Government with violation of the Convention
because the internal proceedings have not yet been concluded, even though, as the
Court itself sets forth (paragraph 58 of this Judgment) in citing its earlier case law,
the duty to investigate is a means and not an end. In this Judgment, the Court has
not imputed to Colombia a violation of the articles that provide for the fair
administration of justice.
***
As sound rules of interpretation require, legal norms in treaties should be interpreted
in such a way that they have an effect, and not so that they have none. In criminal
law, if a person is killed by a dagger it is obvious that he was also the victim of
lesions. However, the crime that was committed is murder, and no judge will
interpret the norms in such a way that the dead person was the victim of "murder
and lesions." It is the same in the matter of violations of human rights. The
Commission does not appear to understand this point, because it claims a series of
violations which are connected but absorbed in others, so that they can not be duly
sustained. The Court cannot fall into the same error.
This is not to say that in the matter of human rights, several violations can not be
committed simultaneously or successively, as in the Velásquez Rodríguez and
Godínez Cruz Cases, in which the Court held proved prolonged detention without
benefit of law with presumed torture before death. The instant case, nevertheless,
does not present the same situation. According to the records, the two persons were
apparently detained at about 7:00 pm and killed before midnight, so that, although it
is true that the proceedings in Colombia were for kidnapping, here what is being
dealt with is the violation of the right to life (Article 4), since the Court did not find
proof of torture. In the Gangaram Panday Case, the Court found that
it [is] impossible to establish the responsibility of the State in the terms described above
because, among other things, the Court is fixing responsibility for illegal detention by
inference but not because it has been proved that the detention was indeed illegal or
arbitrary or that the detainee was tortured. (Gangaram Panday Case, Judgment of
January 21, 1994. Series C No. 16, para. 62.)
If the earlier case law of the Court is of value, the Tribunal should be consistent with
it.
For the above reasons I dissent, respectfully but firmly, from the conclusions of the
Court stated in resolutory part 1 and in those resolutions that derive therefrom.