threatens to disrupt the spiritual bond which links the dead to the living, and
attempts against the solidarity which ought to guide the paths of the human kind in
her temporal dimension.
32.
As to the jurisprudential construction of the right to truth, an advance can be
found between what was in this respect pointed out by the Court in the Castillo Páez
case (Judgment on the merits, of 03.11.1997) 31, and what was pondered in the
present Judgment on the merits in the Bámaca Velásquez case (pars. 198-199). The
right to truth indeed requires the investigation by the State of the wrongful facts,
and its prevalence constitutes, moreover, as already observed, the prerequisite for
the effective access itself to justice - at national and international levels - on the part
of the relatives of the disappeared person (judicial guarantees and protection under
Articles 8 and 25 of the American Convention). As the State is under the duty to
cease the violations of human rights, the prevalence of the right to truth is essential
to the struggle against impunity32, and is ineluctably linked to the very realization of
justice, and to the guarantee of non-repetition of those violations33.
33.
For the affirmation of such right, to the benefit of the relatives of the
disappeared person, it does not appear to me necessary to resort to the
contemporary European doctrine - in my view not much inspired and still less
inspiring - of the so-called protection par ricochet. We are before a legitimate
exercise of interpretation, in perfect conformity with the general rules of
interpretation of treaties34, whereby one seeks to secure the effet utile of the
American Convention on Human Rights in the domestic law of the States Parties,
maximizing the safeguard of the rights protected by the Convention.
34.
The international case-law itself in the matter of human rights has disclosed
its understanding of that legitimate exercise of interpretation, extending the
protection to new situations as from the pre-existing rights. The Inter-American
Court has timely recalled, in its important Advisory Opinion on The Right to
Information on Consular Assistance in the Framework of the Guarantees of the Due
Process of Law, of 01.10.1999, that "human rights treaties are living instruments,
the interpretation of which has to follow the evolution of times and the conditions of
present-day life" (par. 114).
35.
In the same line of such evolutive interpretation, in its recent Judgment on
the merits in the Cantoral Benavides case (of 18.08.2000), the Inter-American Court
pondered35 that, for example, "certain acts which were qualified in the past as
inhuman or degrading treatment", may subsequently, with the passing of time, come
to be considered "as torture, since to the growing exigencies of protection" of human
rights "ought to correspond a greater firmness in confronting the infringements to
the basic values of the democratic societies" (par. 99, and cf. pars. 100-104).
31
.
In which the Court characterized the right to truth as "a concept still in doctrinal and
jurisprudential development", linked to the State duty to investigate the facts which produced the
violations of the American Convention (pars. 86 and 90).
32
.
Just like in other cases, in the present Judgment on the Bámaca Velásquez case the InterAmerican Court has pointed out the need to fight impunity (pars. 211-213), particularly under the general
obligation set forth in Article 1(1) of the American Convention.
33
.
L. Joinet, Informe Final acerca de la Cuestión de la Impunidad de los Autores de Violaciones de
los Derechos Humanos, U.N./Commission on Human Rights, doc. E/CN.4/Sub.2/1997/20, of 26.06.1997,
pp. 5-6 and 19-20.
34
.
Articles 31-33 of the Vienna Conventions on the Law of Treaties (of 1969 and 1986).
35
.
In an approach also followed by the European Court of Human Rights.