SEPARATE OPINION OF JUDGE A.A. CANÇADO TRINDADE
1.
I have concurred in my opinion with the Judgment rendered by the Inter-
American Court of Human Rights in the Case of Gómez-Palomino v. Peru. Furthermore,
I feel I have to record, in this Separate Opinion, my personal thoughts the instant
Judgment rendered by the Court has prompted, particularly regarding the issue of
reparations, as in my previous Separate Opinions in the Case of Myrna Mack-Chang v.
Guatemala (Judgment of November 25, 2003), and the Case of the Plan de Sánchez
Massacre (Judgment on reparations of November 19, 2004).
2.
Indeed, the provisions in Article 63(1) of the American Convention on Human
Rights
1
effectively provide the Inter-American Court with quite an amount of leeway
regarding reparations. In my opinion, as stated in the Opinions referred to above and
as re-stated herein, some reparations with dissuasive or exemplary purposes (related
to aggravated liability) may contribute to the struggle against impunity and to
guarantee non-repetition of harmful events.
3.
The entire chapter on reparations for human rights violations requires a greater
development in concept and in case law, starting with the acknowledgment of the close
relation between the right to reparations and the right to justice. Such development is
particularly necessary in the event of serious and systematic violations of human rights
―as in the instant Case of Gómez-Palomino(cf. infra)― that call for dissuasive
reparations, precisely to ensure non-repetition of such serious human rights violations.
4.
As previously stated in my Separate Opinion in the Case of Myrna Mack-Chang
(2003), on the actual reparatio,
"to what the Inter-American Court maintained in the past,2 it is
my view that reparations can perfectly well be both compensatory and
1
.
Article 63(1) of the American Convention sets forth that: “If the Court finds that there has been a
violation of a right or freedom protected by this Convention, the Court shall rule that the party harmed be
ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the
consequences of the measure or situation that constituted the breach of such right or freedom be
remedied and that fair compensation be paid to the party harmed.”
2
.
In the judgments on “compensatory indemnification” (of 1989) in the Velásquez-Rodríguez and
Godínez- Cruz cases, cit. supra n. (47).
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