3
(and especially those which at the same time constitute a violation of human rights)
cause alarm in their victims who, from that moment, resort to the State institutions to
be afforded the protection they seek (mostly through the rights to truth, justice, and
reparation). Likewise, I believe that the Court acknowledges that criminal proceedings
may turn out to be a kind of “black box” where indecisiveness regarding their outcome
is high and which, consequently, may cause the victims to experience lack of
understanding, alienation, and great uncertainty regarding the results of criminal
proceedings.
7.
Likewise, it may be also said that criminal proceedings are socially seen at
present as a type of process which offers final results on the “guilt” or “innocence” only
at the end. Practice and experience have shown that there are good reasons (which I
do not intend to contest now) to keep the initial stages of the criminal investigation
confidential for the purpose of safeguarding both its effectiveness and the rights of
those potentially responsible and at these stages only preliminarily or tangentially
identified or related to the facts. However, the excessive confidentiality of the State’s
actions in relation to the victims has helped generate the “black box” perception that
institutions do not give an adequate response to the need of protection. On the other
hand, it is true that domestic Procedural Codes generally set the stages and times
when decisions must be formally communicated to the parties, but, as a general rule,
such times do not constitute adequate or significant orientation to inform the victims
on the efforts and steps taken to comply with the State’s obligation of means. It is of
the utmost importance to stress this obligation within the framework of the
strengthening of the victims’ rights.
8.
The lack of transparency, particularly over long periods of lack of activity by
prosecutors, has been the cause of many violations of Articles 8 and 25. An incomplete
understanding of the legal duty to notify the victims may serve to hide the violation of
the obligation to investigate which is incumbent upon the State. Apathy or even
concealment may be justified on the grounds of criminal proceedings wherein
arguments based on confidentiality reasons tend to prevail over the right to
appropriate and full information claimed by the victims.
9.
Therefore, the State has a positive obligation of means, particularly where
violations of human rights have been committed, to prevent impunity which, in my
opinion, involves a conscientious activity to inform (which may go beyond merely
formal requirements) about the efforts made in order to identify those responsible and
determine their responsibility. Likewise, this obligation includes the possibility of
informing the victims about the difficulties encountered in the investigation so that
they may understand the strict requirements imposed by criminal procedural law
before criminal responsibility may be determined. Thus, acquittals may also be
vindictive for the victims where they are not merely the result of unawareness or
misinformation. The judgment rendered by the Inter-American Court did not impose
criminal penalties (as it is not possible) in the case of Escué-Zapata; however, it seeks
to prevent criminal investigations from becoming close black boxes in which
investigations do not progress as they should and that acquittals may not become an
additional form of victimization as a result of lack of adequate information. These
procedural mechanisms of information have been set forth by the States in their
domestic legislation, which allows them a broad assessment margin, but in this
Judgment of Interpretation, the Court has examined this element as provided for in
Articles 8 and 25, with the purpose of preventing failure to comply with the duty to
inform the victims by merely notifying them of the decisions adopted with no context,
prospects, or expectations. Though the order issued by the Court is only applicable to