58.
In the case of Bámaca Velásquez, the Court found it “reasonable to presume
that as next of kin they should not have been indifferent to the loss of their brother,"
(para. 65(b)), and, therefore, it set in equity the reparation due to them for nonpecuniary damages (para. 66). The clarifications obiter dicta of the Court in the
mentioned cases of the “White Van” (Paniagua Morales et al.) and of Bámaca
Velásquez present the most reasonable criterion regarding the matters in question,
the criterions most in agreement with the needs for protection under the American
Convention. This is, in my opinion, the most lucid jurisprudence of the Inter-American
Court on the matter in question, which, in my opinion, must be taken up again by the
Court promptly, abandoning the restrictive, reactionary, and unsustainable criterion it
adopted in this regard in the recent Judgment on merits in the case of La Cantuta.
IV.
Sensu:
Centralization and Expansion of the Notion of Direct Victim Lato
Considerations De Lege Ferenda.
59.
I could not conclude this Concurring Opinion without adding any brief
considerations de lege ferenda on a matter that has occupied my reflections for many
years, that is, that of the centralization and expansion of the notion of victim under
the American Convention of Human Rights. It would not be an exaggeration to weigh
in that said notion in evolution constitutes an open legal category – which has
responded to the recurrent grave violation of human rights, submitted to the
knowledge of the Court in recent years. In this sense, the Court, when facing the
cases of massacres recently brought before it, has sometimes decided to leave the list
of victims open (for future additions, based on the factual complexities of the cases in
question), - instead of “closing” the list in the light of a static and dogmatic
categorization of the condition of victim.
60.
Therefore, the Court has acted, in this sense, correctly and as long as the
possible appearance of additional victims naturally has a direct relationship with the
constant facts described in the petitions originally presented to the knowledge of the
Court, This has provided a balance between the concomitant concerns in guaranteeing
legal security in the search for justice within the complex circumstances of this kind of
cases, massacres or grave violations, affecting a greater circle of people. This has
been an promising development, which, in my opinion, has served the needs of
protection under the American Convention, in circumstances never foreseen by the
writers of the latter.
61.
In the end, human evil has no limits, and the reaction of the Law must be felt
promptly, taking into account the gravity of the violations to the rights protected by
the American Convention. Just like the notion of direct victim is, in my opinion, in
constant evolution and expansion (cf. supra), the same thing happens with the
concept of injured party under the American Convention, especially having present
the duty of reparation. The concept of “injured party” (Article 63(1) of the American
Convention), even though prima facie more ample, corresponds in the end, in my
opinion, to the concept itself of victim lato sensu (covering the direct, indirect, and
possible victims), as I stated two decades ago in a course I gave in the International
Law Academy of the Hague.56
62.
In synthesis, for me the injured party corresponds to the ample notion of
victim, according to the jurisprudential construction of the Inter-American Court,
.
A.A. Cançado Trindade, "Co-Existence and Co-Ordination of Mechanisms of International
Protection of Human Rights (At Global and Regional Levels)", 202 Recueil des Cours de
l'Académie de Droit International de La Haye (1987), cap. XI, pp. 243-299.
56