Court, without in any way modifying its Judgment on merits and reparations of
11.25.2006, - generates in me a series of personal reflections that – as already stated
– I establish below, in the present Concurring Opinion, as grounds for my position
regarding the matters dealt with.
13.
My reflections fall upon the following matters: a) the primacy of Law over brute
force in the historical passing from private revenge to public justice; b) the perennial
nature of the search for justice; c) the importance of the oral procedure and the need
to hold public hearings; d) reason and persuasion; e) the Kantian imperative and the
due process of law; f) clarification and substantiation; g) the primacy of Law in any
circumstance, even in the fight against terrorism; h) the protection of human rights in
the middle of the fight against terrorism; i) the victims and the precisions regarding
applicable law; j) the blindness of private revenge and the “Eye That Cries” even
more; and k) the right to a fair trial (national and international) as the right to
realization itself, and as an imperative of the jus cogens. I proceed now to examine
each of the matters stated herein.
III.
From Private Revenge to Public Justice: The Primacy of Law
over Brute Force.
14.
Everyone is submitted to the Law in a democratic society in the sense of the
American Convention on Human Rights, - both those governed as well as those who
govern. Nobody is removed from the protection of the Law; both the victims of
violations to human rights and the victims of terrorist acts are protected and have the
right to receive reparation. There are, however, precisions to be made with regard to
the law applicable to the situations of one and the other, as I will indicate below (cf.
infra). The contemporary needs of protection have been covered with difficulties that
arise from the current phenomenon of the diversification of sources, state and nonstate, of the violations to human rights (cf. infra).
15.
This is a relevant aspect that will reveal the complexity of the issue, presented
as a whole in the present Interpretation of the Judgment in the case of the Castro
Castro Prison versus Peru. In a historical perspective, it was necessary to wait a long
time, actually centuries, to reach the degree of evolution culminating in the primacy of
Law over brute force, - which will certainly continue – within the conceptual universe
of Law. Its historic roots are found in ancient times. Lets concentrate, first, on the
protection and reparation, guaranteed by Law to all people and all the victims of
violations of their rights, perpetrated both by state agents as well as by non-state and
clandestine agents.
16.
In the trilogy of tragedies of The Oresteia by Aeschylus, the chain of private
revenges that afflicted and victimized its characters was only suspended or
interrupted with the emergency (in the third part of the triad) of Dike, the emblematic
figure of the constitution of a criminal court, - with the identification of the parties
(victim and defendant), the preliminary stages of the proceedings, a fair trial (due
process, procès équitable), and the judgment. Corrective or restorative justice was
superimposed over private justice (revenge), the rational response to the brutal
reaction, thus rebuilding the social fabric.
17.
In his Oresteia, a literary classic of old Greece essentially regarding justice,
Aeschylus did not give in when facing the spirit of tragedy, since, in the middle of the
intense human suffering, he revealed his belief in ethical accession; in The
Eumenides, the final piece (458 a.C.), Aeschylus considered that, in the end, reason