SEPARATE OPINION OF JUDGE A.A. CANÇADO TRINDADE
1.
The present case of the "Street Children" is truly paradigmatic, to the extent
that, besides portraying a real situation of day-to-day life in Latin America, it discloses
that human conscience has attained a degree of evolution that has rendered it possible
to impart justice by means of the protection of the rights of the marginalized or
excluded, in granting to them, as to every human being, direct access to an
international judicial instance in order to vindicate their rights, as the true complaining
party. The human being, even in the most adverse conditions, emerges as subject of
the International Law of Human Rights, endowed with full international juridicoprocedural capacity. The present Judgment of the Inter-American Court of Human
Rights in the case of the "Street Children" not only resolves a concrete case as to
reparations, but also contributes to raise the standards of human behaviour with regard
to the dispossessed. Cases such as the present one, added to others that reveal a high
intensity of human suffering, such as, e.g., that of Paniagua Morales and Others,
further disclose that the violent death of the beloved ones can have - as it has in fact
occurred - devastating effects on the close relatives and disrupting effects on the
respective family units.
2.
These cases, in my view, make it quite clear that the reparations of human
rights violations ought to be determined as from the gravity of the facts and their
impact upon the integrality of the personality of the victims, - both the direct (the
murdered persons) and the indirect ones (their surviving close relatives). In voting in
favour of the adoption, by the Inter-American Court of Human Rights, of the present
Judgment on reparations in the case of the "Street Children", I feel thus obliged to
present my personal thoughts on the matter. They are focussed, mainly, on three
elements which, surprisingly, have been insufficiently dwelt upon in contemporary
international case-law and doctrine, as well as in the practice of pleadings of litigators
in the international contentieux to date, in the matter of reparations for violations of
human rights.
3.
I refer particularly to the trilogy, formed by victimization, human suffering, and
rehabilitation of the victims, - to be considered as from the integrality of the personality
of the victims. In my understanding, there is pressing need for greater reflection on this
trilogy, in order to understand the true meaning and scope of reparations in the present
context of the protection of the rights of the human being. It is not sufficient to keep in
mind the basic distinction - nowadays widely recognized - between reparations and one
of their forms, indemnizations. One ought to identify the real meaning of the term
reparations in the domain of the International Law of Human Rights (cf. pars. 40-42,
infra). The determination of the forms, amounts and extent of reparations, in my view
cannot prescind from a prior comprehension of the real sense of human suffering.
4.
The personal thoughts which I see it fit to develop in this Separate Opinion are
not meant to submit general criteria for the settlement of problems pertaining to
reparations due to the victims of human rights violations, such as those raised in the
present case of the "Street Children". In warning as to the risks - so common nowadays
- of a reductionist approach to the matter (with an undue emphasis on compensations
in the form of simple indemnizations), my purpose is rather to draw attention to the
need to contribute to secure the prevalence of superior values which are at issue, from
the perspective of the centrality of the position of the victims, in their integrality, as
well as to the importance of securing the measures of rehabilitation of these latter.
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