6
reparations should consist of the continuation of the judicial proceedings for the
clarification of the disappearance of Isidro Caballero-Delgado and María del Carmen
Santana and punishment in conformance with Colombian domestic law," which it
then orders in the Resolutions of the Court. Interpreted strictly, one must conclude
that the Court charges the Colombian Government with violation of the Convention
because the internal proceedings have not yet been concluded, even though, as the
Court itself sets forth (paragraph 58 of this Judgment) in citing its earlier case law,
the duty to investigate is a means and not an end. In this Judgment, the Court has
not imputed to Colombia a violation of the articles that provide for the fair
administration of justice.
***
As sound rules of interpretation require, legal norms in treaties should be
interpreted in such a way that they have an effect, and not so that they have none.
In criminal law, if a person is killed by a dagger it is obvious that he was also the
victim of lesions. However, the crime that was committed is murder, and no judge
will interpret the norms in such a way that the dead person was the victim of
"murder and lesions." It is the same in the matter of violations of human rights.
The Commission does not appear to understand this point, because it claims a
series of violations which are connected but absorbed in others, so that they can
not be duly sustained. The Court cannot fall into the same error.
This is not to say that in the matter of human rights, several violations can not be
committed simultaneously or successively, as in the Velásquez Rodríguez and
Godínez Cruz Cases, in which the Court held proved prolonged detention without
benefit of law with presumed torture before death. The instant case, nevertheless,
does not present the same situation. According to the records, the two persons
were apparently detained at about 7:00 pm and killed before midnight, so that,
although it is true that the proceedings in Colombia were for kidnapping, here what
is being dealt with is the violation of the right to life (Article 4), since the Court did
not find proof of torture. In the Gangaram Panday Case, the Court found that
it [is] impossible to establish the responsibility of the State in the terms
described above because, among other things, the Court is fixing
responsibility for illegal detention by inference but not because it has been
proved that the detention was indeed illegal or arbitrary or that the detainee
was tortured. (Gangaram Panday Case, Judgment of January 21, 1994.
Series C No. 16, para. 62.)
If the earlier case law of the Court is of value, the Tribunal should be consistent
with it.
For the above reasons I dissent, respectfully but firmly, from the conclusions of the
Court stated in resolutory part 1 and in those resolutions that derive therefrom.
Rafael Nieto-Navia
Judge
Manuel Ventura-Robles
Secretary