4
times the term acquiescence is used. At other times, there is an allusions to the
State’s “institutional responsibility.”
In other cases, expressions such as the
“acknowledgement of international responsibility,” are invoked. Consequently, it is
necessary to advance towards greater conceptual precision, which may involve new
developments in the procedures of the parties and of the inter-American Court itself.
There is also a need to establish a new practice in this respect: the precise indication
of the facts that the State admits to and the claims to which it acquiesces, in the
context of the acknowledgement of international responsibility and its consequences.
This would go beyond the mere acknowledgement of international or institutional
responsibility - I will return to this point below – which does not always clarify the
defendant’s intention and the scope that the latter attributes to it.
14.
In my concurring opinion to the judgment of September 18, 2003, in Bulacio
v. Argentina, I attempted to approach this matter, indicating that two procedural
definitions may coincide in an acknowledgement of responsibility – I am not saying
that they always or necessarily coincide, because this will depend on the intention of
the act and the way in which it is stated – both with substantive consequences:
confession and acquiescence. Acquiescence – according to Alcalá-Zamora – is “an
act of regulation or waiver of rights”:
a waiver of the right to defense (El
allanamiento en el proceso penal, EJEA, Buenos Aires, 1962, pp. 129 and ff.).
“Confession is limited to de facto affirmations and acquiescence to the juridical claim”
(Proceso, autocomposición y autodefensa (Contribución al estudio de los fines del
proceso), Universidad Nacional Autónoma de México, Instituto de Investigaciones
Jurídicas, 3ª ed., México, 1991, p. 96). Consequently, it will be necessary to
examine the nature of the act of acknowledgement formulated by the State, in the
context of the international proceeding and of the acts of the parties that occur
within this.
15.
The authentic scope of the statements made by some of the parties is not
always clearly established, particularly those statements that, made by the State,
may define the course of the proceeding and the content of the final decision.
Obviously, I am not referring only to the scope that an external interpreter attributes
to them, but to the scope that the organs that issue the statements wish to impart to
them, which thereby commits the procedural position and substantive obligations of
the State and, likewise, the defense and the substantive rights of the individuals.
This is why other procedural parties are reticent to accept the statements of the
State at face value and request the Court to establish the nature and scope of such
statements. If the statement is not plain to the Court and to all the parties, the Court
must examine it in light of different information – precedents, circumstances,
clarifications, organ that issues it, etc. – and establish its juridical scope and
consequences.
16.
The recognition of institutional responsibility – as has been stated in various
cases, including the Maritza Urrutia case, decided on November 27, 2003, during the
same session in which the Court delivered judgment in the Mack Chang case – may
only signify the acknowledgement that there is a continuity in the State’s obligations,
beyond the periodic changes in the public administration, or the acceptance that
there were shortcomings in the exercise of a general function of protection or
guarantee that the State has with regard to all persons subject to its jurisdiction.
This does not necessarily mean acknowledgement of concrete and specific conducts –
acts or omissions – of State agents that resulted in direct violations of rights and
freedoms established in domestic law and in the international Convention, which
would give rise both to a judgment by the Inter-American Court in relation to the
State itself, and to individual prosecution and punishment by the domestic courts in