CONCURRING OPINION OF JUDGE DE ROUX-RENGIFO
I must begin with some comments concerning the judgment in the present case; one
that concerns violations of the American Convention committed by Peru in trying
four civilians –the victims in the instant case- in the military criminal courts.
The preamble to the American Convention begins by describing democratic
institutions as the framework for a system of personal liberties and rights which the
Convention is intended to reinforce. Article 29(c) de la Convention, moreover,
provides that no provision of the Convention shall be interpreted as “precluding […]
rights or guarantees that are […] derived from representative democracy as a form
of government.” These provisions (and also perhaps the one contained in Article
32(2) concerning the limitation of each person’s rights by the demands of the
general welfare in a democratic society) articulate the Convention’s commitment to
representative democracy, one that goes well beyond anything that Article 23, which
recognizes the political rights (the right to vote and to be elected to office, and so
on) to which every person is entitled, might encompass.
Thus, the American Convention establishes three sets of provisions for the protection
of human rights: the first is set out in the articles that refer to the various rights and
freedoms protected (articles 3 to 25); the second consists of articles 1(1) and 2,
which establish the duty to respect and guarantee those rights, and to adopt the
legislative or other measures necessary to give them effect; and third set, as the
preceding paragraph suggests, somehow establishes an association between the
protection of those rights and a democratic political system of government.
To give military courts the authority to prosecute civilians is, first of all, to deviate
from the democratic principle of separation of powers, ∗ because by so doing the
executive branch is being given a function that is the purview of another branch of
government, the judiciary. Indeed, in the situation submitted to the Court, the
extraordinary method used in deviating from that principle was particularly
objectionable: the institution that is the quintessence of the executive and coercive
power of the State was given the sensitive job of compiling evidence on certain facts,
determining the probative value of that evidence and, based on a given body of laws,
determining which facts had been proven, so as to infer their effects in law. Clearly,
some of the business of the State is not being driven by principles of modern
democratic government, a situation that threatens to weaken the structure and
functioning of an even broader cross-section of democratic institutions.
However, judgments that find States responsible for violations of the American
Convention that specifically involve the linkage that exists between the protection of
human rights and democratic government and institutions will have to wait until
more case law on that linkage has been developed. In the interim, the Court has
based its condemnation of the practice of military courts prosecuting civilians on the
solid grounds that Article 8(1) of the Convention provides. I do not believe any
objection could be made to the Court’s argument.
∗
The abbreviated space for opinions of this type is not the proper place to address the intimate
relationship that exists between what the Convention calls “democratic institutions” and the principle of
separation of powers.