7
reparations, the Court has failed to extract the juridical consequences of its own
determination of violation of Article 1(1) (in combination with Articles 7 and 4) of the
American Convention on Human Rights, to which it devoted no less than five paragraphs in
its Judgment on the merits.0
18.
In one of those paragraphs, in the aforementioned Judgment on the merits (of 08
December 1995) in the present Caballero Delgado and Santana case, the Court in fact
linked its determination of non-compliance by the respondent State with the general
obligation of Article 1(1) of the Convention to the measures of reparation (paragraph 59).0
That was not the first time in which the Court acted this way: in previous cases, the Court
determined that the general duty to guarantee the protected rights implies the obligation of
the States Parties to organize all the structures of public power in order to secure juridically
the full exercise of the protected rights and, accordingly, to prevent, investigate and punish
all violations of those rights and, moreover, to seek reparation for the damages resulting
from those violations.0
19.
Thus established that link by the Court itself, its Judgment on the merits in the
present Caballero Delgado and Santana case0 enabled it, thereby, in my view, to pronounce
affirmatively on the aforementioned measures of non-pecuniary reparation requested by the
Commission,0 as it should have done in the present Judgment on reparations. In my
understanding, despite the assertion that there was no violation of Article 2 of the
Convention, the finding of non-compliance with the general duty of Article 1(1) is per se
sufficient to determine to the State Party that it ought to take measures, including of
legislative character, to guarantee to all persons under its jurisdiction the full exercise of all
the rights protected by the American Convention.
20.
It is perfectly possible to proceed to such determination in the present context of
reparation for damages, inasmuch as the normative basis of Article 63(1) of the American
Convention contemplates the ruling on both the indemnizations as well as other measures of
reparation resulting from the duty to guarantee the enjoyment of the rights violated. In the
present domain of protection, international law and domestic law are in
constant
18
It may be recalled, in this connection, that, in the cases concerning Honduras (merits), the Court, in
determining the inadequacy and ineffectiveness of the remedy of habeas corpus in the cases of forced or
involuntary disappearances at issue, in a way revised the formal "requirements" of the national law, demonstrating
their insufficiencies. Cf. Velásquez Rodríguez Case, loc. cit. supra n. (1), paragraphs 65-77; Godínez Cruz Case, loc.
cit. supra n. (1), paragraphs 68-82.
19
Paragraphs 55 until 59, besides operative paragraph n. 1 of the Judgment on the merits, of 08 December
1995, in the present Caballero Delgado and Santana case.
20
Besides having determined the violation of Article 1(1) of the Convention (paragraph 59, and operative
paragraph n. 1 of that Judgment), the Court pondered that "to guarantee fully the rights recognized by the
Convention, it is not sufficient that the Government undertakes an investigation and tries to sanction those guilty;
rather it is also necessary that all this activity of the Government culminates in the reparation to the injured party,
which in this case has not occurred" (paragraph 58). And the Court added that "in the present case the reparation
ought to consist in the continuation of the judicial proceedings to inquire into the disappearance of Isidro CaballeroDelgado and María del Carmen Santana and the punishment of those responsible in accordance with Colombian
domestic law" (paragraph 69).
21
Velásquez Rodríguez Case, loc. cit. supra n. (1), paragraph 166; Godínez Cruz Case, loc. cit. supra n. (1),
paragraph 175.
22
Paragraphs 59, 58 and 69, and operative paragraph n. 1.
23
And by the petitioners in the case on behalf of the victims.