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90.
Article 17 of the Convention mentions the origin of the family in marriage and, on
this basis, sets forth certain protections for its members. Article 13 of the San Salvador
Protocol, signed two decades after the Pact of San José, no longer refers to this juridical
act as the foundation for the family, which Article VI of the American Declaration of the
Rights and Duties of Man does not refer to either. Clearly, marriage, as a contract or
institution of civil Law, is not –and even less so in many countries of the hemisphere- the
only way to establish a family. Modern family Law has shifted substantially in the
direction imposed by liberty, equity, and reality. These other ways to constitute the
household unit, as a result of the free decision of individuals, merits respect and
protection by the law and by institutions, as comparative Law has asserted.
91.
In the case to which the judgment of the Inter-American Court refers, and to
which I attach this Opinion, the facts involving violations severely affected Mr. Tibi and
Mrs. Baruet, as well as their child and the woman’s children, who lived with the couple
and were members of the family unit in the manner that its adult members had freely
decided. The abridgment may have influenced, together with other causes –which it is
not for the Court to analyze- the breaking up of the family group and scattering of its
members. In the process of hearing numerous cases of grave human rights violations,
including more than a few regarding executions, forced disappearances, torture, or
arbitrary detention, we have seen how the members of the family group of those who
suffered those attacks directly have also suffered their consequences.
92.
There could hardly be violations, among the most serious ones, to which those in
closest emotional contact with the victim, based on family ties –broadly understoodwere indifferent, and which did not entail dissolving pressures on the union. The facts in
violation have had various types of repercussions on these individuals: scattering the
members of the family, depriving them of legitimate income, forcing them to incur
extraordinary expenses, interfering in communication amongst them, altering or
suppressing shared life, negatively affecting legitimate plans and projects, weakening
household ties, generating physical or mental ailing of the next of kin, and so forth.
93.
In accordance with the circumstances of each case, it is possible to raise the
possibility of analyzing these facts as a consequence or projection of other violations that
were committed or as a direct violation of Article 17 of the Pact of San José,
independently of said abridgments, although also in connection with them. The Court
chose the first option, precisely bearing in mind the circumstances of this case. I believe
that, under those circumstances, this was the right decision. Family disintegration was a
consequence, among others, of the violations committed against the accused, his
spouse, and the children who constituted, with them, the family group. The Court has
not omitted recognition and assessment of said violations: they were examined
elsewhere in the judgment, and on this basis the Court reached the conclusion that both
Mrs. Baruet and the children mentioned in said ruling are, themselves, victims of the
facts in violation, and not merely entitled, for other reasons, to property-related
reparations.
XVIII. Restitutio in integrum
94.
It has been customary for the Court to reflect, in its judgments on reparations,
the well-known idea that “reparation of the damage requires, whenever possible, full
restitution (restitutio in integrum), which consists of reestablishment of the prior
situation.” And it has also been customary for it to immediately add: “When this is not
possible, as in the instant case...”. This is so in the Tibi judgment. I also sign this
statement because I agree that the best reparation would be “reestablishment of the
prior situation” before the violation. However, this is not possible, as I have stated
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