80
and lower positions. However, as has been indicated, for different reasons the results
of the proceedings have been very limited as regards the five persons who were
convicted and, of these, those who have served their sentences, since several of the
defendants died during the proceedings. The result of the State’s lack of due
diligence is that none of the three criminal proceedings has concluded and
determined the corresponding criminal responsibilities. The absence of two of the
principal accused, the former dictator, Alfredo Stroessner Matiauda, and the former
Minister of the Interior, Sabino Augusto Montanaro, granted asylum in Brazil and
Honduras, respectively, and declared “in contempt of court,” added to the failure to
implement an extradition request for the former go a long way to determining the
impunity of the facts. Owing to its relevance, this will be examined more thoroughly
below (infra paras. 123 to 132).
120. Regarding the existence of an effective recourse to repair the consequences
of the violations committed, the State argued that “the victims’ next of kin have had
[full] access to justice, [both to] the ordinary civil jurisdiction to claim compensation
for damages, and [to] the Ombudsman’s Office to request, independently and
autonomously, the judicial actions and corresponding compensation under Act No.
836/96 [(sic). Despite this, the next of kin have not used these judicial or
administrative recourses, which cannot be attributed to the State.” Although this
assertion has an impact on reparations, the Court considers it must examine it
together with the merits of the case, since the effectiveness of domestic remedies
must be assessed integrally, taking into account whether, in the specific case, there
were domestic mechanisms that ensured real access to justice to claim reparation for
the violation.
121. In other cases, the Court has taken into account the results achieved in
administrative or other proceedings conducted at the domestic level, when assessing
the effectiveness of the remedies and even when establishing reparations for
pecuniary and non-pecuniary damage. Thus, in the Mapiripán Massacre” case, the
Court considered that the integral reparation of the violation of a right protected by
the Convention cannot be reduced to the payment of compensation to the victim’s
next of kin. Therefore, it took into account some of the results achieved in the
administrative-law proceedings filed by the next of kin of the victims in that case,
considering that the compensation established by these instances for pecuniary and
non-pecuniary damage could be understood to be included within the broadest
concepts of reparations for pecuniary and non-pecuniary damage. Consequently, the
Court stated that those results could be considered when establishing the pertinent
reparations, “provided that what was decided in those proceedings is now res
judicata and that it is reasonable in the circumstances of the case.”85
122. The Court considers that the State’s responsibility for not having repaired the
consequences of the violations in this case is not annulled or diminished by the fact
that the victims’ next of kin have not attempted to use the civil or administrative
mechanisms indicated by the State. The obligation to repair damage is a legal
obligation of the State that should not depend exclusively on the procedural activities
of the victims. In two of the criminal proceedings that were filed in the civil
jurisdiction, the civil responsibility of some of those convicted was declared, although
there is no evidence that the civil plaintiffs in the criminal instance have tried to have
85
Cf. Case of the Ituango Massacres, supra note 1, para. 339; Case of the Pueblo Bello Massacre,
supra note 5, para. 206, and Case of the “Mapiripán Massacre”, supra note 2, para. 214.
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