13
adopted by the domestic criminal jurisdiction regarding sentences of imprisonment
and also, if applicable, other punishments, such as: deprivation of rights or functions,
disqualification, compensation, etc.
47.
There remains the question of how this aggravated seriousness may affect the
reparations decided by the Inter-American Court. In my opinion, it is perfectly
possible that it influences acts of non-pecuniary compensation, such as publication of
the judgment, expression of guilt and requirement of apology in official declarations,
and commemoration of the memory of the victim. There are also the strictly
patrimonial consequences – compensation for pecuniary and non-pecuniary damage,
concepts that have their own importance and observe their own norms – that would
arise if we tried to use that aggravated seriousness as a basis for establishing
“punitive damages,” a concept that has not been included in the case law of this
Court, because it corresponds more to the idea of a fine than to that of the
reparation of damage and, in any case, it would be payable by the Treasury, which
implies an additional burden for the taxpayer and also a reduction in the resources
that should go towards social programs.
48.
Among the observations arising from the conduct of any State obliged to
guarantee conditions of public security and to recognize and protect scrupulously the
rights of its citizens – both tasks inherent in the preservation of the rule of law in a
democratic society – I believe that the Inter-American Court’s indication that security
agencies should be subject to the norms of the democratic constitutional order,
international human rights treaties and international humanitarian law is particularly
significant (para 284). Even the fight against extremely serious criminal behavior
cannot serve as an argument for eroding the system of rights and guarantees built
up by humanity over several centuries with infinite efforts and sacrifices.
49.
Preservation of the rule of law must be ensured without infringing the
principles and norms that characterize it. On this point the judgment of the InterAmerican Court in the Maritza Urrutia case (concerning the problem of torture),
which was rendered immediately after the judgment in the Mack Chang case, has
been emphatic. In this matter, the Court asserted that the investigation and
prosecution of the most serious crimes, whatever their nature, could not be invoked
as justification for violating the human rights of the accused.
The absolute
prohibition of torture, in all its forms – physical and psychological – is part of
international jus cogens.
VIII. THE VICTIM OF FACTS THAT VIOLATE HUMAN RIGHTS
50.
The important judgment to which I add this concurring opinion again gives
rise to an observation regarding the victim of a violation: the scope of this concept in
view of the affected possessions and rights established in the American Convention –
or in any other applicable instrument – and the implications as regards the
relationship between the impairment of a right, the person who suffers it, and the
measure in favor of the latter that this Court provides in its judgment. The protection
of the victim – and, evidently, the prevention of violations of the human rights of all
individuals – constitute the desideratum of the inter-American system and the raison
d’être of the institutions that form part of it, such as the Inter-American Court. Thus,
several judgments have examined the concept of victim, which then allows us to
identify with suitable precision those who possess the right to the reparations that
the Convention establishes, which are included, qualitatively and quantitatively, in
the Court’s judgments. I have dealt with the issue in another of my opinions (Cf.