14
Separate concurring opinion of Judge Sergio García Ramírez in ICourtHR, Bámaca
Velásquez case, Judgment of November 25, 2000, Series C No. 70, 2001, pp. 171
and ff., paras. 2 to 5).
51.
In law, the victim is the person who suffer injury to the juridical possession
protected by a right or freedom with the necessary relevance to appear in the
elevated category of “human or fundamental” rights. Article 63(1) of the Convention,
which provides a framework for the Court’s decisions on reparations, which, in turn,
are a prominent chapter of the system to protect human rights – without reparations,
the latter would be deprived of practical effects – indicates that, if it finds that there
has been a violation of a right or freedom, the Court “shall rule that the injured party
[Sp. lesionado] 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” [Sp. la parte lesionada] (emphasis
added).
52.
As can be seen, the American Convention identifies the active subject of the
violation as the “injured person” [Note: see the Spanish version above] or the
“injured party”, that is, as a person (according to the term used in Article 1(1) of the
Pact of San José) who suffers the injury (violation, infringement, reduction: in brief,
an attack on, not merely the danger of the affecting) of a possession – due to the
violation of a right or freedom established in the Convention – and, thus becomes a
“party” in a litigation (I allude to party in the substantive sense and to litigation as a
substantive datum prior to the proceeding, a measures that is part of it, following the
“Carneluttiana” terminology), where the State and the injured person come face to
face, even though, in the procedural dispute, the parties act in a formal sense which
the Convention itself recognizes. In the terms of Article 63(1), the guarantee of the
right or freedom violated corresponds to the injured person and the payment of the
compensation – which, as the Court’s case law has reiterated, is one, but not the
only type of reparation – to the injured party.
53.
The Rules of Procedure of the Court, adopted in 2000 and in force today,
define the “victim” and the “alleged victim.” Thus, the term victim refers to “the
person whose rights have been violated, according to a judgment pronounced by the
Court” (Article 2(31)), and alleged victim refers to “the person whose rights under
the Convention are alleged to have been violated” (Article 2(30)). It is obvious that,
according to these Rules of Procedure, the concepts of victim and alleged victim are
the same as injured person or injured party, on the one hand, and alleged injured
person or alleged injured party, on the other. Although the Convention does not use
the term alleged, this provides a natural designation for the individual who has been
indicated as a victim, while awaiting delivery of the decision that transforms this
procedural and preliminary designation into a confirmed and final juridical
classification. Thus, the relationship that I mentioned above between injured person
and injured party, on the one hand, and compensation, on the other, is also
established as regards victim or alleged victim and compensation.
54.
However, the Rules of Procedure of 2000 (the fourth Rules of Procedure in the
history of the Inter-American Court), which have expanded the role of individuals
before the Court, bringing the substantive part and the procedural part increasingly
closer – to the extent allowed within the procedural framework of the Pact of San
José – has included references to the next of kin. This expression refers to the
“immediate family, that is, the direct ascendants and descendants, siblings, spouses,
or permanent companions, or those determined by the Court, if applicable” (who
may be linked to the direct and immediate victim by a reasonably close relationship,