1
SEPARATE CONCURRING OPINION OF
JUDGE HERNÁN SALGADO PESANTES
As a result of this case, we have reflected once more on the so-called right to the
truth and, although this right is not set out in the American Convention, there is an
implicit reference to it in some of its provisions, such as Articles 8, 11, 14 and 25.
The right to the truth has been shaped in a historical context where the State's
abuse of power has caused serious conflicts, particularly when the forced
disappearance of persons has been used by State agents. In these circumstances,
the community demands the right to the truth as a means of permitting
reconciliation and overcoming friction between the State and society.
From the foregoing, it is clear that the right to the truth -at least up until now- has a
collective and general nature, a type of extended right, whose effectiveness should
benefit society as a whole. However, under certain circumstances, such as those of
forced disappearance, this extended nature should not prevent a person or a family
from claiming the right to obtain the truth.
In Article II (in fine) of the Inter-American Convention on Forced Disappearance of
Persons, when the elements that constitute forced disappearance are established,
they include “... the absence of information or a refusal to acknowledge that
deprivation of freedom and to give information on the whereabouts of that person,
thereby impeding his or her recourse to the applicable legal remedies and procedural
guarantees.”
This reference leads us to recall Articles 8 and 25 of the American Convention, which,
as we have said, implicitly contain the right to the truth, since the person who has
recourse to justice is seeking clarification of certain facts, particularly in criminal
matters. As regards freedom of thought and expression, specifically the right to
information, society requires that this should be truthful, which makes us think that
there also are elements of the right to the truth in this area.
In my opinion, the doctrine that is developed should take into account issues such as
the following:
The nature of this faculty or prerogative to obtain the truth is essentially
moral, since the conduct opposed to the truth is lying; and it has a subjective
content that must be defined, so as not to fall into negative subjectivism;
The failure to tell, reveal or establish the truth may give rise to different
degrees of responsibility (unintentional error, premeditation, etcetera);
In any case, axiology or legal evaluation must construct a solid doctrine that allows
the right to the truth to be included in positive law and, at the same time,
determines to what extent such a right can and should be applied.
Hernán Salgado-Pesantes
Judge
Manuel E. Ventura-Robles
Secretary