also their next of kin, direct victims - lato sensu – of the violation to the right to
humane treatment, and as such beneficiaries of reparations, by their own right.59 In
the same line of reasoning, admitting the expansion of the notion of victims, in the
recent cycle of the cases of massacres, the Court has considered as “victims” or
“injured parties” the people that have a relationship with the facts described in the
application, as well as the evidence presented or produced before it.60
67.
The previously mentioned cases of massacres, solved by the Inter-American
Court have, in a certain sense, in my understanding, effectively transcended the
distinction between direct and indirect victims, in favor of an expansion of the notion
of direct victim itself. Thus, the next of kin of the direct victims as a result of the
violation to their right to life (i.e., the next of kin of murdered or massacred victims),
also become, as a direct consequence of the violent death of their loved ones, direct
victims by virtue of the violation of their own right to humane treatment (mental and
moral integrity of the next of kin), followed by the violation of their right to access
justice and the guarantees of the due legal process.61
68.
Just like the list of the direct victims of the violation to the right to life is left
open, in recent cases of massacres of great complexity (cf. supra), the list of direct
victims of the violation to the right to humane treatment (the next of kin of those)
may under certain circumstances be left open, as long as there are great difficulties
for a prompt identification. This is the point of view that an international human rights
court must adopt, different from the usual modus operandi of national criminal courts.
Here the continued expansion, and not the restriction, of the condition of victim under
the American Convention of Human Rights prevails.
69.
Jurisprudential evolution in this sense is comprehensible and promising: finally,
the reaction of the Law to its violations in detriment of human beings is proportional
to the gravity of the facts, of the violations to the rights protected. I hope that these
reflections de lege ferenda can help the Court to promptly take up again this
jurisprudential construction and that it may know how to extract from it the
experience in order to always respond, each time with a greater effectiveness, to
possible grave and recurrent violations to human rights and fight impunity, thus
avoiding that they repeat themselves.
V.
Epilogue: Final Considerations.
70.
I have not yet concluded this Concurring Opinion since, before doing so, I
would like to return to where I started. Participating in the Inter-American Court is like
coexisting with the tragedy of the vulnerable human condition, of the injustices and
the violence that surround and threaten it. It’s like being on a ship in the middle of the
stormy high seas, where there is no way to avoid the storms: instead, you have to
face them. If grave violations to human rights occur, affecting growing circles of
.
Cf., v.g., inter alia, CtIADH, Sentencia de reparaciones en el caso de los "Niños de la
Calle" (Villagrán Morales y Otros, 2001), párr. 68.
59
.
Cf. also in this regard, v.g., inter alia, the Judgments of the Court in the cases of
Goiburú et al. v. Paraguay (of 07.22.2006), para. 29; of the massacres of Ituango v. Colombia
(of 07.01.2006), para. 91; of the massacre of Mapiripán v. Colombia (of 09.15.2005), para.
183; of Acevedo Jaramillo et al. v. Peru (02.07.2006), para. 227.
60
.
Cf. ICHR, Judgments in the cases of Vargas Areco v. Paraguay (of 09.26.2006), paras.
95-96; of Goiburú et al. v. Paraguay (of 07.22.2006), para. 96; and cf. Judgments in the cases
of Ximenes Lopes v. Brazil (of 07.04.2006), para. 156; of Montero Aranguren et al. v. Venezuela
(Catia Detention Center, of 07.05.2006), para. 104; and of Baldeón García v. Peru (of
04.06.2006), para. 128.
61