SEPARATE OPINION OF JUDGE SERGIO GARCÍA-RAMÍREZ ON THE JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS IN THE CASE OF KAWAS-FERNÁNDEZ V. HONDURAS, OF APRIL 3, 2009 1. In the judgment rendered in the Case of Kawas-Fernández v. Honduras by the InterAmerican Court of Human Rights on April 3, 2009, the Court held that there was a violation of Article 4 (Right to life) in connection with Article 1(1) of the American Convention on Human Rights. I agree on such finding, which was made unanimously, and add my opinion explaining my own reasoning which, as I said, is concurrent with that of my colleagues as to the fundamental finding made in the Judgment. 2. To me, it is clear that the State failed to comply with its duty to investigate the facts surrounding the deprivation of the victim’s life. Solid evidence has established the mistakes, misplacements, delays and insufficiencies in the investigation, which evidences the violation of the State’s duty of guarantee, in the terms of the judgments of the Inter-American Court. Hence the violation of Articles 4 and 1(1) of the Pact of San José. EVIDENCE AND JUDGMENT 3. That said, I find that some considerations regarding the evidence, which is a key subject in the proceedings and a topic of constant occupation for the Inter-American Court, are in order. Essentially, the trial is an evidentiary exercise that will lead – based on solid grounds – to the Court’s decision. 4. It is my view that a judge hearing and determining a case involving human rights violations must use utmost care in the analysis of the available evidence to establish the existence of certain conduct by action or omission (attributable to State agents or third parties whose behavior is attributable to the State) and the link between the conduct and the result that entails a human rights violation. It is based on such evidence that the adjudication will be made. 5. I agree that, considering its jurisdiction ratione materiae and its human rights protection mission, the Inter-American Court should not mechanically adopt the criteria for the admission and assessing of evidence which prevail in the domestic legal system. Indeed, it is not entrusted with a criminal function and it may and usually does more freely accept and analyze that evidence which is offered to it or which it orders on its own initiative. 6. However, the above does not mean that the Court actually tones down or reduces the evidentiary requirements which, along with the relevant logical and legal reasoning, will provide the foundation for the findings on the facts constituting violations of fundamental rights, the international responsibility of the State and the legal consequences stemming from both. The Court itself – a court of Law – constantly refers to the rules of sound judgment that guide its evidentiary assessments. 7. My experience on this subject is no different from that of any other judge facing the heavy responsibility of analyzing facts which are not always apparent and sufficiently established via conclusive evidence, and making serious findings based on the properly assessed available evidence. The judge will thus find it necessary to address the doubts, which will naturally arise in the course of the examination. The solution to these dilemmas lies with the evidence: it is only through the evidence that such doubt is quelled.