CONCURRING OPINION OF JUDGE AD HOC EDUARDO LÓPEZ-MEDINA IN THE THE JUDGMENT RENDERED IN CASE OF ESCUÉ-ZAPATA V. COLOMBIA ON MAY 5, 2008 1. I have concurred with my vote in the unanimous decision rendered by the Court in the Request for Interpretation in the case of Escué-Zapata v. Colombia. Though I have no reservations as to the decision adopted, I deem it appropriate to consider some issues that may help clarify my opinion regarding two matters discussed therein. I. Publication of the findings reached in the criminal proceedings 2. In the relevant paragraph of the Judgment on the Interpretation, the Court notes that: 15. In the instant case, the Court states that, regarding the reparation measures ordered, the expression “the findings reached in [the] proceedings” refers to the final judicial decisions adopted in the criminal proceedings whereby these are concluded and the main controversy decided, whether convicting or acquitting the defendant. These decisions must be made public so that the Colombian society and the Paez Community may learn the truth about the facts under investigation and, if appropriate, the identity of those accountable for such facts. Likewise, the victim’s next of kin and the above Community must be properly informed of the progress of the proceedings, particularly by the prosecutors. 3. The duty to publicize the findings reached in the criminal proceedings was imposed by the Court as part of the reparation measures ordered as a result of the violation of Articles 8 (Right to a Fair Trial) and 25 (Right to Judicial Protection) of the American Convention on Human Rights, as accepted by the Colombian State. The determination of the international responsibility of the State in the instant case has no immediate legal effects with regard to the identity and responsibility of the perpetrators of the crimes defined by the domestic legislation and, at the same time, constituting a violation of the international obligations enshrined by the Pact of San Jose. The Court only orders “the State to effectively carry out the criminal proceedings which have been brought and the proceedings which may be brought in the future” (para. 166 of the Judgment on the Merits, Reparations and Costs). According to classical legal categories,1 it may be said that this is an obligation of means (or activity, also known as due diligence) rather than an obligation of result (or work), as imposing effective penalties depends on a number of substantive, evidentiary, and procedural variables that no State can guarantee, -not even those which investigate criminal acts in violation of human rights in good faith and with due diligence. Even the most efficient judicial systems cannot -and should not- guarantee that in all cases of violations of domestic criminal legislation the perpetrators shall be identified and punished. Such absolute reduction of impunity is both impossible and undesirable as, within the ordinary framework of human institutions, it would point not to a new and maybe unimaginable degree of perfection in the techniques used to investigate a crime, but rather to massive violations of procedural guarantees and other 1 This distinction was originally found in civil law, but has been broadly adopted in international law: see Pierre-Marie Dupuy, Reviewing the Difficulties of Codification: On Ago’s Classification of Obligations of Means and Obligations of Result in Relation to State Responsibility. European Journal of International Law, Vol. 10, pages. 371-385 (1999). Cf. also Case of Velásquez-Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 175.

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