2
is the result of the specific nature of the proceedings for the violation of human
rights and, particularly, of the system for the protection of the fundamental rights, of
which the Court is the reflection and instrument.
5.
The apparently unnecessary reception of evidence and statements on the
violations satisfies different purposes: (a) it proves the legality and the legitimacy,
the veracity and the admissibility of the acknowledgement or confession, which the
Court could reject if it considered that it was untrue or in any way contrary to the
human rights protection system; (b) it contributes to the prevention of future
violations before society and before the State itself, since it reveals the violations
committed, which are often extremely serious; this prevention does not constitute a
real measure of reparation, even though it is usually included in that category (I
myself have supported this); (c) it provides the victim with the moral satisfaction
that is unnecessary in most patrimonial litigations, but essential in human rights
disputes; such disputes are of interest to society as a whole, have had a strong
impact on the victim’s life, and have a significant influence on the latter’s
experiences, feelings, capacities and expectations; this is why there is insistence that
the judgment per se is a means of moral reparation; and (d) it responds to the
individual and social need for truth and justice.
6.
In the judgment delivered in the instant case, the Court has emphasized,
once again, the value of the acknowledgement of the facts and of responsibility –
even if this is partial – as an attestation of the ethics of the State, which thereby
agrees to rectify a very grave deviation and, as in the criminal justice system, to
pave the way for restorative justice that emerges from the difficult rapprochement of
those in dispute – so unequal at this level – and not merely from the Court’s
decision. The Court describes the facts and defines their consequences, but does not
necessarily reconstruct (as a settlement between the parties can) the relationship
governed by understanding and justice that is the profound moral and political
mainstay of dealings between the public authorities and the population.
7.
I have already indicated and pondered before the political organs of the
Organization of American States – the Commission on Juridical and Political Affairs
and the General Assembly - the existence of a notable number of cases in which
there is total or partial acquiescence – or acknowledgement of responsibility. This
has ethical and juridical transcendence and announces a settlement mechanism that
should be sought as often as possible. Obviously, decisions in this regard are the sole
and exclusive competence of the States. The Inter-American Commission can
encourage settlements and the Court, in turn, can and must record the fact and
appreciate its advantages. It is worth noting that, in the regular session at which the
judgment in the Ituango Massacres case was delivered, the three cases decided
included to a greater or lesser extent – but usually to a greater extent – the
acceptance of the facts and acknowledgement of responsibility: the Ituango case
itself (Colombia), the Ximenes Lopes case (Brazil) and the Montero Aranguren case
(Venezuela). This is a relevant and increasing element in the history of the interAmerican jurisdiction.
8.
The Court also took note of the various domestic proceedings leading to the
clarification of the facts, the establishment of responsibilities – of different types –
and the ordering of certain consequences. It is pertinent that these different
mechanisms have been initiated under domestic laws, to the extent that they are
designed to discover the truth and, on this basis, take the appropriate decisions.
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