reflections, which I document in the present Concurring Opinion, will actually be
useful. I hope so. The imponderable has called me here to document them in the form
of an addendum to my considerations previously developed in what I thought would
be my last Opinion in the Court, in my Concurring Opinion in the Judgment on merits
and reparations (of 11.29.2006) in the present case of La Cantuta.
6.
I do not expect to convince with this the current majority of the Court in the
cas d'espèce, whose line of thought I am already aware of and I do not share in
different aspects. But maybe in the future my personal reflections, which I hereby
spread upon the record, can be considered appropriate by a new composition of this
Tribunal in the years to come. And even if they are not, maybe they will be of some
use for those who wish to interest themselves in the lessons obtained from the work
in the Court by a survivor of the same, who is aware of the dangers (of the
experience) lived in it and the feeling of being able to continue to contribute with the
cause of the protection of human rights, based now also on cumulative experience.
7.
My considerations, developed below, return to that reasoned by the Court in
the VI part of the present Judgment of Interpretation (paras. 24-35). Agreeing with
the deliberation of the Court in the sense that Mrs. Carmen Juana Mariños Figueroa
and Mr. Marcelino Marcos Pablo Meza, sister and brother of two fatal victims in the
present case of La Cantuta (Messrs. Juan Gabriel Mariños Figueroa and Heráclides
Pablo Meza, respectively) are victims of the violation of Articles 8(1) and 25 (taken
jointly) of the American Convention (access to justice lato sensu, covering the
guarantees of the due legal process), I have concurred with my vote to the adoption
of the present Judgment of Interpretation.
8.
But I do not feel completely satisfied, since the Court did not go further, in the
previous Judgment of merits and reparations or in the present Judgment of
Interpretation in the case of La Cantuta, with regard to Article 5(1) of the American
Convention (right to physical, mental, and moral personal integrity), in the most lucid
and advanced line of its previous constant jurisprudence. When demanding evidence
of non-pecuniary damages in the case of La Cantuta, the Court self limited itself, it
stopped its own jurisprudence in this sense, and it introduced a criterion that in my
opinion is not sustainable and harmful for the effective international protection of
human rights. Therefore, I am in the obligation to substantiate my discrepancy with
this new setback, along with many others since the case of the Serrano Cruz Sisters v.
El Salvador (Judgments of preliminary objections, of 11.23.2004, and of merits and
reparations of 03.01.2005), issued in its most recent jurisprudence.
9.
What moves me, to elaborate this Concurring Opinion, which is what has
always moved me, continues in effect to be the search for a more effective protection
of the rights protected by the American Convention on Human Rights. Thus, taking
into account the matter mentioned, presented in the legal procedure of the present
Judgment of Interpretation in the case of La Cantuta, I will focus my reflections, which
I will present below, on three matters that I consider of great importance. The first
consists of considerations regarding the conceptualization of person and victim within
the human capacity of thought. Said considerations cover the counter-position of
personality with regard to individuality, personalism beyond individualism, legal
personalism and subjective law, the evolution of subjective law toward the new
dimension of the international juridical protection of human beings, and the
conceptualization of victim and the contribution of International Human Rights Law.
10.
The second point refers to the necessary expansion – never the restriction – of
the condition of victim under the American Convention. And the third aspect, related
to the aforementioned, consists in some considerations de lege ferenda on the
centralization – and the expansion – of said condition of victim (direct, lato sensu)
under the American Convention (considerations de lege ferenda). Thus, the field will