2
provided for in the American Convention of ensuring respect for the rights recognized
therein (Article 1) and of adopting provisions of domestic law (legislative or other measures)
as may be necessary to give effect to those rights (Article 2). I consider the Court fully
competent to rule on this specific point, despite the allegation of non-application of the
above-mentioned provisions of the Code of Military Justice in the cas d'espèce.
5.
It was necessary to await many years for the possibility to be admitted of raising
the question of the incompatibility of legislative measures and administrative practices with
the international conventional obligations pertaining to human rights, in the context of
concrete cases 3 . The international case-law in the present domain, at both regional and
global levels, has evolved to the point of admitting nowadays that an individual may, under
certain circumstances, claim to be victim of a violation of human rights perpetrated by the
simple existence of measures permitted by the legislation, without their having being applied
to him 4 . He may actually do so in face of the simple risk of being directly affected by a law 5
, under the continuous threat represented by the maintenance in force of the impugned
legislation 6 . It is acknowledged nowadays that an individual may effectively challenge a law
that has not yet been applied to his detriment, sufficing to that effect that such law be
applicable in such a way that the risk or threat that he may suffer its effects is real, is
something more than a simple theoretical possibility 7 .
6.
An understanding to the contrary would undermine the duty of prevention, upheld
in the case-law of this Court. Precision has been given to the wide scope of this duty, which
comprises all the measures, legislative and administrative and others, which promote the
safeguard of human rights and ensure that the violations of these latter are effectively
treated as unlawful acts bringing about sanctions on those responsible for them 8 .
Reparation, as a generic concept, encompasses also these elements, besides the indemnities
due to the victims. Full reparation, which in the present context appears as the reaction of
the juridical order of protection to the facts in breach of the guaranteed rights, has a wide
scope. It includes, besides the restitutio in integrum (restoration of the previous situation of
the victim, whenever possible) and the indemnities (in the light of the general principle of
the neminem laedere), the rehabilitation, the satisfaction and - significantly - the guarantee
of non-repetition of the acts in violation of human rights (the duty of prevention).
3
As occurred, for example, in the Kjeldsen (1972) and Donnelly (1973) cases before the
European Commission of Human Rights.
4
.European Court of Human Rights, Klass and Others case, Judgment of 06.09.1978, para. 34.
5
European Court of Human Rights, Marckx case, Judgment of 13.06.1979, para. 27;
European Court of Human Rights, Johnston and Others case, Judgment of 18.12.1986, para. 42.
6
European Court of Human Rights, Dudgeon case, Judgment of 22.10.1981, paras. 41 and
63. In the case of De Jong, Baljet and van den Brink, the European Court referred to its jurisprudence
constante ("well-established case-law") whereby the existence of a violation of the Convention was
"conceivable even in the absence of detriment"; Judgment of 22.05.1984, para. 41.
7
Human Rights Committee (under the U.N. Covenant on Civil and Political Rights), case of
Aumeeruddy-Cziffra and Others, Views of 09.04.1981, para. 9(2). Irrespective of the conclusions as to
the determination of the facts in a case, one can hardly deny that a domestic law can, by its own
existence, constitute a direct violation of the protected rights; Human Rights Committee, case of the
Disabled and Handicapped Persons in Italy, Views of 10.04.1984, para. 6(2).
8
As pointed out by the Inter-American Court in the cases of Velásquez Rodríguez, Judgment
of 29.07.1988, para. 175; and Godínez Cruz, Judgment of 20.01.1989, para. 185.