5
"just satisfaction" as a measure of reparation, as well as for the duty to ensure the
enjoyment of the protected rights. Thirdly, Article 63(1) of the American Convention, in
providing for the duty to ensure, refers to the injured party whose rights have been
violated: in my understanding, the term "injured party" covers both the direct victims of
human rights violations as well as the indirect victims (their relatives and dependents), who
also suffer the consequences of such violations.
13.
Since its earliest contentious cases on reparations (Velásquez Rodríguez and Godínez
Cruz), the case-law of the Court has focused above all on the element of the "just
compensation" as a measure of reparation, curiously making abstraction of the duty to
ensure or guarantee in the present context, likewise enshrined in Article 63(1) of the
American Convention. The time has come to link that duty to the "just compensation", as
stipulated in Article 63(1). Such duty comprises all measures - including legislative
measures - which the States Parties ought to take in order to afford the individuals under
their jurisdiction the full exercise of all the rights enshrined in the American Convention.
Accordingly, in the light of the provision of Article 63(1), I understand that the Court should
proceed to the determination of both the indemnizations as well as the other measures of
reparation resulting from the duty to ensure or guarantee the enjoyment of the rights that
were violated. The interpretation which I uphold is the one which seems to me to be in full
conformity with the objective character0 of the conventional obligations contracted by the
States Parties to the American Convention.
14.
For the reasons here expressed, I am unable to concur with the determination by the
Court, in operative paragraph n. 3, and its criteria, in paragraphs 55-57, of the present
Judgment, to the effect that it is not possible to consider the request by the Inter-American
Commission on Human Rights0 (of 10 May 1996), to proceed, as one of the measures of
non-pecuniary reparation pertaining to the remedy of habeas corpus, to the determination
of the compatibility or otherwise of the pertinent provisions of the Colombian domestic
legislation with the American Convention, and to the harmonization that may be necessary
of those legal provisions with the criteria set forth in the Convention0, as well as to the
determination of the legislative tipification of the crime of forced disappearance of persons.
15.
As this Court itself pertinently warned one decade ago, in its eighth Advisory Opinion,
... habeas corpus performs a vital role in ensuring that a person's life and physical integrity
are respected, in preventing his disappearance or the keeping of his whereabouts secret,
and in protecting him against torture or other cruel, inhumane, or degrading punishment
or treatment.0
8
Acknowledged in the Court's case-law itself: The Effect of Reservations on the Entry into Force of the
American Convention on Human Rights (Arts. 74 and 75), Advisory Opinion OC-2/82, of 24 September 1982, Series
A, n. 2, paragraphs 29-31; Restrictions to the Death Penalty (Arts 4.2 and 4.4 American Convention on Human
Rights), Advisory Opinion OC-3/83, of 08 September 1983, Series A, n. 3, paragraph 50. Human rights treaties are
oriented towards guaranteeing the enjoyment of the protected rights, rather than establishing a balance of interests
between States; "Other Treaties" Subject to the Advisory Jurisdiction of the Court (Art. 64 American Convention on
Human Rights), Advisory Opinion OC-1/82, of 24 September 1982, Series A, n. 1, paragraph 24.
9
Making its own the request of 07 May 1996 of the petitioners in the case on behalf of the victims.
10
That is, harmonization in the sense that the remedy of habeas corpus is not to limit itself only to
ascertaining unlawful arrests or unlawful prolongations of deprivation of liberty, but, in addition, that it is also to
confer, upon national judges, faculties to undertake the search of the persons at issue, with particular urgency.
11
Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human
Rights), Advisory Opinion OC-8/87, January 30 1987, Series A, n. 8, paragraph 35 (emphasis added).