3
element, the human suffering, considered as from the gravity of the facts and their
impact upon the integrality of the personality - and above all the condition of spiritual
being - of the (direct and indirect) victims.
9.
In my view, the absence of an objective criterion of assessment of human
suffering should not be invoked as a justification for a "technical" - or rather mechanical
- application of the relevant juridical norms. To the contrary, the lesson which appears
to me necessary to extract from the present case of the "Street Children" (and also
from the case Paniagua Morales and Others) is in the sense that one ought to be guided
by the victimization and the human suffering, as well as the rehabilitation of the
surviving victims4, also in order to fill gaps in the applicable juridical norms and,
furthermore, on the basis of considerations of equity, to reach a solution ex aequo et
bono for the concrete case in conformity with Law. Ultimately, the jurisdiction (jus
dicere, jurisdictio) of the Tribunal is summed up in its power to declare the Law, and
the sentence (from the Latin sententia, etymologically derived from "sentimiento",
feeling) is something more than a logical operation in the framework of predetermined
juridical limits.
10.
The intensity of human suffering, so eloquently demostrated in the present case
of the "Street Children" (as well as in the case of Paniagua Morales and Others)5,
constitutes, in sum, in my view, the element of major importance for the consideration
of the reparations for violations of human rights. In the present case of the "Street
Children", one of the mothers, Mrs. Marta Isabel Túnchez Palencia declared in the
public hearing before the Court, on 12 March 2001, that "I will still be agonizing and my
4
.
This last element - rehabilitation - has already been identified as one of the forms of reparation: cf.,
e.g., Th. van Boven (special rapporteur), Study concerning the Right to Restitution, Compensation and
Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms - Final Report, U.N.
Commission on Human Rights/Sub-Commission on Prevention of Discrimination and Protection of Minorities,
doc. E/CN.4/Sub.2/1993/8, of 02.07.1993, pp. 53 and 57; D. Shelton, Remedies in International Human
Rights Law, Oxford, University Press, 2000, pp. 302-303; but the question needs greater conceptual
development, on the part of the contemporary case-law as well as doctrine on the matter.
5
.
It draws my attention the desperation which can be inferred, for example, from the declarations, in
the public hearing before the Court, of 12 March 2001, in the present case of the Street Children, of the
mothers, Mrs. Ana María Contreras and Mrs. Reyna Dalila Villagrán Morales, confronting the fact that their
sons had been killed as a "small animal (un animalito)" (the same term utilized by both); cf. IACtHR,
Transcripción de la Audiencia Pública de 12 de Marzo de 2001 sobre Reparaciones en el Caso Villagrán Morales
y Otros, pp. 17 and 48, respectively (unpublished document); as well as from the declaration, in the public
hearing before the Court, of 11-12 August 2000, in the case Paniagua Morales y Otros, of the mother, Mrs.
María Ildefonsa Morales de Paniagua, in describing her dead daughter: "(...) she was all burnt. The nails of the
fingers of the hands and of the feet had been extracted. She had a big cut here, decapitated. (...) It was a
terrible death". Cf. IACtHR, Case Paniagua Morales and Others / Reparations - Transcripción de la Audiencia
Pública Celebrada en la Sede de la Corte los Días 11 y 12 de Agosto de 2000, p. 89 (unpublished document). I cannot omit here to to point out the respectuous way whereby they were both interrogated, as witnesses, by
both the Inter-American Commission and the respondent State; it is worth leaving on the records the
respectable intervention of this latter in the aforementioned hearing, in pointing out that he would ask no
question, and adding: "Mrs. Ildefonsa Morales de Paniagua, on behalf of the Government and the State which
we represent, we deeply regret the suffering, the pain and the damage caused to you. We perfectly know that
there is no human power capable of remedying this wound, but we hope that may exist resignation in your
heart so that you achieve, ultimately, some day to give us your pardon (...) [for the] damage caused to you";
ibid., p. 96. In my view, in that moment of the hearing, the International Law of Human Rights, moved by the
human conscience, disclosed the vigour of its operation.
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos