12.
The present case of the Castro Castro Prison occurs within a situation of chronic
and generalized violence, in which atrocities were reacted to with atrocities, the terrorism
of Sendero Luminoso was reacted to with the State’s terrorism, multiplying the thousands
and thousands of victims, and affecting the social fabric. The tragedy referred to in the
present legal proceedings of the Interpretation of a Judgment, - whose examination
should have been analyzed in greater depth by the Court, without in any way modifying
its Judgment on merits and reparations of 11.25.2006, - generates in me a series of
personal reflections that – as already stated – I establish below, in the present
Concurring Opinion, as grounds for my position regarding the matters dealt with.
13.
My reflections fall upon the following matters: a) the primacy of Law over brute
force in the historical passing from private revenge to public justice; b) the perennial
nature of the search for justice; c) the importance of the oral procedure and the need to
hold public hearings; d) reason and persuasion; e) the Kantian imperative and the due
process of law; f) clarification and substantiation; g) the primacy of Law in any
circumstance, even in the fight against terrorism; h) the protection of human rights in the
middle of the fight against terrorism; i) the victims and the precisions regarding
applicable law; j) the blindness of private revenge and the “Eye That Cries” even more;
and k) the right to a fair trial (national and international) as the right to realization itself,
and as an imperative of the jus cogens. I proceed now to examine each of the matters
stated herein.
III.
From Private Revenge to Public Justice: The Primacy of Law over
Brute Force.
14.
Everyone is submitted to the Law in a democratic society in the sense of the
American Convention on Human Rights, - both those governed as well as those who
govern. Nobody is removed from the protection of the Law; both the victims of violations
to human rights and the victims of terrorist acts are protected and have the right to
receive reparation. There are, however, precisions to be made with regard to the law
applicable to the situations of one and the other, as I will indicate below (cf. infra). The
contemporary needs of protection have been covered with difficulties that arise from the
current phenomenon of the diversification of sources, state and non-state, of the
violations to human rights (cf. infra).
15.
This is a relevant aspect that will reveal the complexity of the issue, presented as
a whole in the present Interpretation of the Judgment in the case of the Castro Castro
Prison versus Peru. In a historical perspective, it was necessary to wait a long time,
actually centuries, to reach the degree of evolution culminating in the primacy of Law
over brute force, - which will certainly continue – within the conceptual universe of Law.
Its historic roots are found in ancient times. Lets concentrate, first, on the protection and
reparation, guaranteed by Law to all people and all the victims of violations of their
rights, perpetrated both by state agents as well as by non-state and clandestine agents.
16.
In the trilogy of tragedies of The Oresteia by Aeschylus, the chain of private
revenges that afflicted and victimized its characters was only suspended or interrupted
with the emergency (in the third part of the triad) of Dike, the emblematic figure of the
constitution of a criminal court, - with the identification of the parties (victim and
defendant), the preliminary stages of the proceedings, a fair trial (due process, procès
équitable), and the judgment. Corrective or restorative justice was superimposed over
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