SEPARATE OPINION OF JUDGE GARCIA RAMÍREZ REGARDING THE JUDGMENT
OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS
IN THE CASE OF ESCUÉ-ZAPATA V. COLOMBIA, OF JULY 3, 2007
1. In the Order of this case as well as in other cases examined during the 76th Period of
Regular Sessions (July 2007), such as the Case of Cantoral-Huamaní and Garcia-Santa
Cruz v. Peru (Judgment of July 10, 2007), the Inter-American Court has shown its
criterion regarding some interesting lines of thought with the connection that exists
between the general duty to guarantee the rights and freedoms established in Article
1(1) of the American Convention, the Articles that the Convention recognizes as
"substantive rights" (for example, Article 4: Life; Article 5: Humane Treatment; Article
7: Personal Liberty, among others) and those that refer to the so-called “procedural
rights" or even better, " instrumental rights” (for example, Article 8: Access to justice
in general; Article 25: Right to judicial protection of the fundamental rights, without
prejudice of other rights which are also “procedural” or “instrumental” enshrined in
articles assigned to the “substantive” category, such as the case of Article 4(6):
Extraordinary means for amnesty, pardon, or commutation of sentence; and 7(6):
Judicial control over the lawfulness of the detention, corresponding in general to
habeas corpus). In previous occasions I have made reference to these issues and other
issues related to them; for instance, according to my "Overview of the criminal due
process of (procedural) law in the case law of the Inter-American Court” (“Panorama
del debido proceso –adjetivo- penal en la jurisprudencia de la Corte Interamericana”),
published in Latin American Constitutional Law Yearbook, Konrad Adenauer Institute,
Uruguay, year 12, Volume II, 2006, pages 1111 and subs.
2. Since the first rulings on adversarial issues, the Court has highlighted that Article
1(1) of the American Convention vests a duty of protection in the State – or, if
preferred, a double obligation -, with regard to the human rights enshrined in the
Convention: a) on the one side, to respect the rights and liberties; b) on the other
side, to guarantee its full and free exercise. This second duty, commonly called
“obligation to guarantee”, implies, among other things, that the State "makes justice”
within the domestic level. It is worth mentioning that there is a duty prior to naturally: for the need of concept-both statements: The obligation to “recognize” the
rights and liberties established in the Convention, even though that recognition derives
from the inclusion of such rights and liberties in the domestic body of law, or even if it
results from the direct application of such recognition to the domestic body of law.
3. The foregoing means, with regard to the possible criminal consequence of the
violations committed (regularly, the violations of human rights are gathered in criminal
definitions, taking into account the fact they imply an intense infringement of the legal
interests of the higher hierarchy), that the State investigate such violations and
prosecute the responsible (obligation of means). This investigation serves the ends
immediately related to the victim, as a way of redress (furthermore, they provide
satisfaction to the relatives) and aims at the prevention of future violations that could
multiply sheltered by impunity: Non-repetition of violations. The compliance with the
duty of guarantee corresponds, thus and in certain manner, to what in other order is
called “general prevention."
4. Up to the present, the Court has not declared, in general, the violation of Article
1(1) of the Convention, apart from other violations and without any connection
thereto. The Court has found that the violation of the obligations to respect and
guarantee is analyzed in connection with the violation of some other right established
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