CONCURRING OPINION OF JUDGE A.A. CANÇADO TRINDADE
1.
I have concurred with my opinion in the adoption of the present Judgment of
Interpretation adopted by the Inter-American Court of Human Rights in the case of
the Castro Castro Prison versus Peru, in which it declares admissible the requests for
interpretation presented to its consideration both by the appellant State as well as by
the legal representatives (different to the common intervener) of a group of victims,
and in which it seeks to clarify the matters presented in said requests. However, I
consider the reasoning of the Court insufficient and unsatisfactory in relation to some
of the aspects covered by it, thus I am in the obligation to go on the record, in the
present Concurring Opinion, with regard to my own reasoning, as grounds for my
position on the matters dealt with. Before going on to the substantive matters in
question, I allow myself to outline some prior considerations, starting with the content
itself, specifically, of the State’s request for Interpretation of the Judgment submitted
to the Court’s consideration.
I.
The Content of the Central Matter Object of the Judgment of
Interpretation of the Court.
1.
The State’s Request for Interpretation.
2.
In its request for Interpretation of the Judgment, of March 15, 2007, in the
present case of the Castro Castro Prison, the Peruvian State refers to different aspects
of the Judgment on merits and reparations in the cas d'espèce of this Court (of
11.25.2006), summarized in the present Judgment of Interpretation adopted by the
Court (paras. 2, 6, 12, and 28-32). The concern that can be concluded from said
request for interpretation, of 33 pages, is, however, to obtain from the Court
clarification, in the form of obiter dicta, regarding the entire set of thousands of
victims in the internal Peruvian armed conflict, that is, the victims of the terrorist acts
of both Sendero Luminoso and State agents. In its request, the State argues that it is
aware of the protection due to the totality of these victims, “without asymmetries that
have the risk of being perceived as injustices by the concerned reaction." (para.
6(20))
3.
The Court must, naturally, subject itself to the facts established in the initial
application that led to the Judgment on merits and reparations. The appellant State
itself says, at the beginning of its request for interpretation, that it is not seeking in
any way a revision of the previous Judgment of the Court, or a re-discussion of
matters of fact or law already determined by the Court (para. 3(4)). It also states that
"honoring the principle pacta sunt servanda", it respects and will obey the orders
emanated from the Court’s Judgment (para. 3(2)). What the appellant State is looking
for is basically clarifications on the matters presented in its request for Interpretation
of the Judgment, including doctrinal progress on “the responsibility of non-state
groups for violations of human rights and crimes against humanity." (para. 6(2))
2.
Briefs Submitted to the Court regarding the State’s
Request for Interpretation.
4.
Several briefs were presented to the Court with regard to the request for
Interpretation of the Judgment presented by the State. In one of its three briefs (all of