DISSENTING OPINION OF JUDGE PIZA-ESCALANTE
1.
I would have had no reservation in approving the Judgment in its entirety had point 6 been
drafted as follows:
6.
Decides that the form and amount of such compensation, failing
agreement between the parties, with the intervention of the Commission, within
six months of the date of this judgment, shall be settled by the Court and, for that
purpose, retains jurisdiction of the case.
I would even have concurred with a less definitive decision to remit the agreement to the parties,
without referring to the Commission, as the Court concluded in paragraph 191; but not with the
conclusion of paragraph 192, to which I also dissent.
2.
My dissent is not the on the merits or the basic sense of that provision, insofar as it
reserves to the Court the final decision on the compensation awarded in the abstract and leaves to
the parties the initiative to reach an agreement within the time period stipulated, but only to the
granting of the status of parties for that purpose, which the majority vote gives the Commission,
but not the assignees of the victim.
3.
I dissent, therefore, in order to be consistent in my interpretation of the Convention and of
the Regulations of the Commission and Rules of Procedure of the Court, according to which the
only active party in the proceeding before the Court, in a substantive sense, is the victim and his
assignees, who posses the rights in question and are the beneficiaries of the provisions contained
in the Judgment, in keeping with Article 63 (1) of the Convention, which specifically provides that:
. . . fair compensation be paid to the injured party.
The Commission, an impartial and instrumental party comparable to a public prosecutor
(Ministerio Público) in the inter-American system of protection of human rights, is a party only in a
procedural sense, as the prosecution, and not in a substantive or material sense, as beneficiary of
the judgment (Arts. 57 and 61, Convention; 19. b of the Regulations of the Commission; and 28
of the Statute of the Court).
4.
This thesis regarding the parties in the proceeding before the Court is the same that I have
consistently urged, beginning with my Separate Opinions on the decisions of 1981 and 1983 in the
Matter of Viviana Gallardo et al. (see, e.g., Decision of November 13, 1981, "Explanation of
Vote" by Judge Piza, para. 8, and Decision of September 8, 1983, "Separate Vote" of Judge Piza,
paras. 36, 39 and operative point No. 8, where I argued, inter alia:
39.
. . . in my judgment, the parties in the substantial sense are . . .: a) the
State of Costa Rica as the "passive party," which is charged with the violations
and is the eventual debtor of its reparation . . . and b) as the "active party," the
person entitled to the rights claimed and, therefore, the creditor of any eventual
estimatory sentence, the victims . . . . The Commission is not a party in any
substantial sense because it is not the holder of the rights or the duties that might
be or can be declared or constituted by the verdict).
5.
Although valid, the majority opinion is deficient because it does not recognize the
assignees of Manfredo Velásquez as a party, in conformity with Article 63 (1) of the Convention,