SEPARATE OPINION OF JUDGE A.A. CANÇADO TRINDADE
1.
I have concurred in my opinion, in the city of Buenos Aires, with the
Judgment entered by the Inter-American Court of Human Rights in the case of
Baldeón-García v. Peru. Given the importance of some of the issues discussed in this
Judgment, I believe I should explain my personal analysis thereon to support my
position on this matter. Particularly, I am referring to the need to progress on the
Court’s precedent setting process, in the sense of broadening the material scope of
the jus cogens (in order to cover also the right to fair trial lato sensu), and the
acknowledgment of the obligations thereby imposed upon the State to act in a given
manner and also to achieve a given result.
2.
In this Judgment, the Court considered the arrest and subsequent execution
of Mr. Bernabé as proven facts Baldeón-García; events that occurred when the victim
was 68 years old. The arrest, made effective on September, 25, 1990, in the locality
of Pacchahuallhua, Department of Ayacucho, was part of a "counterinsurgency
operation" carried out by military officers who invaded the aforementioned rural
community through the use of violence and random shootings (para. 72(14-18)). On
that same day,
"The persons arrested were first locked in a room and then transferred to another room to
be interrogated and tortured.
[…] During his arrest, Mr. Bernabé Baldeón-García was beaten, tied with metal wires
hanged upside down from a beam, and later submerged in a tank filled with cold water.
Mr. Bernabé Baldeón-García died in the early morning of September 26, 1990 (...) while
under the custody of military officers.
The dead body of Mr. Bernabé Baldeón-García was buried that same day without the
presence of his next of kin" (para. 72(19-22)).
3.
The Court found that the arrest and execution of the victim were carried out
under a systematic pattern of mistreatment and extrajudicial executions in Peru, as
acknowledged by the Truth and Reconciliation Commission of Peru, particularly in the
periods 1983-1984 and 1989-1993 (para. 72(1-3)). In the Judgment of the case of
Baldeón-García v. Peru (referred to in the Final Report of August 28, 2003 by said
Commission), the Inter-American Court duly highlighted the contributions made by
the Truth and Reconciliation Commission of Peru (paras. 167 and 196); however, it
indicated that justice had not been done and that perpetrators were yet to be
punished.
4.
I believe, as indicated in my Separate Opinion (paras. 1-43) in the case of
Plan de Sánchez Massacre v. Guatemala (Judgment of April, 29, 2004),1 that the
aforementioned systematic pattern of mistreatment and extrajudicial executions
constitutes an aggravating circumstance and thus results in the aggravated
international responsibility of the respondent government, and all appropriate legal
effects. In that context, the Court may –and should- have made progress on the
precedent setting process; however, it only repeated what it had already sustained in
prior cases.
5.
In the Judgment of August 18, 2000, in the case of Cantoral Benavides v.
Peru, the Court made significant progress when holding that
1
Cf. also my Separate Opinion on the Judgment (of November 25, 2003) in the case of Myrna
Mack Chang v. Guatemala (paras. 1-55 of the Opinion).