18
67.
Article 13(2) of the Convention establishes the limits to this freedom: respect
for the rights and reputation of others, or protection of national security, public
order, or public health or morals, which could lead to subsequent responsibilities if
they are affected unduly. Even assuming that Myrna Mack’s publications had, in
some way, represented infringements of these individual or collective assets or rights
– which has not been shown – it is evident that the means to punish such excesses
should be adapted to the provisions of the law. It is not necessary to weigh the
difference between this possible juridical response and the de facto response which
occurred.
68.
A right or freedom is violated not only when its exercise is absolutely
prevented using methods that make it materially impracticable, but also when the
conditions are created that try to make it impossible to exercise it, or involve the
possessors of the right or freedom in extreme situations that signify, in reality,
impediments that cannot be overcome at all or only with difficulty. Access to justice
is illusory – and the individual’s judicial guarantees are violated – when the defense
of the rights through legal proceedings is subject to charges or requirements that
place it outside the reach of individuals (an issue that the Court will examine in the
Cantos case), or when measures of intimidation are invoked that instill fear or terror
in the potential petitioners, who therefore cease to exercise the rights that they
nominally possess.
69.
The attack on Myrna Mack Chang had the purpose – as can be seen from the
file – of dissuading or punishing her conduct in relation to her research or
publications; in other words, of violating the freedom of thought and expression that
she nominally enjoyed under domestic legislation and the international norms that I
have referred to. The acts of intimidation that the anthropologist Mack Chang
endured before her death have been narrated by witnesses in this case, such as
Clara Arenas Bianchi, an AVANCSO Board member (para. 126.b), Julio Edgar Cabrera
Ovalle, bishop of Quiché (para. 127.a), and Helen Beatriz Mack Chang, the victim’s
sister (para. 127.d).
70.
Furthermore, the repression that she endured also extends to the exercise of
the freedom of expression of society as a whole, because its members are prevented
from imparting their ideas for fear of suffering consequences such as those that
occurred in this case, or are deprived of the possibility of receiving freely the
information and ideas of those whose opinions differ from what is considered
acceptable by the authorities.
XI.
OTHER ISSUES
71.
I believe that, in the future case law of the Inter-American Court, other issues
may arise that appear in this judgment and in previous ones, or that they engender.
For example, this Judgment reiterates the Court’s position, followed systematically in
numerous judgments, that the amounts it establishes to be delivered as
compensation should be returned to the State when they are not claimed by the
beneficiaries in a specific period of time, if this is possible. It is worthwhile exploring
the possibility of these amounts being applied to other concepts linked to human
rights, in accordance with the characteristics of the case referred to in the respective
judgement and, to the relevant extent, the approach concerning application of
resources to a socially useful end that is closely linked to the victims, which has been
outlined in other judgments such as those in the Aloeboetoe (Suriname) and the
Mayagna Awas Tigni Community (Nicaragua) cases. It may be considered – although