C. Right of the injured party
But, with regard to the above, it should also not be overlooked that the matter in
question entails, in particular, the exercise of the right of the party who has been injured
by the human rights violations to claim from the respective State, under the second
sentence of Article 63 de the Convention, reparation for “the consequences of the
measure or situation that constituted the breach of such right or freedom […] and that fair
compensation be paid” as decided in the corresponding judgment. Thus, the question is
how “the injured party” can claim, at the domestic level, the “fair compensation” decided
in an international judgment if this judgment does not include the respective amount; a
circumstance that would evidently impede the assessment of whether or not the latter is
fair. This is precisely what would happen in the case of the Judgment.
D. The right of third parties
The foregoing is especially relevant in the case of the right of third parties who were not
parties to the proceedings. This is the point that is raised in the Judgment when it
decides that the State must establish an appropriate mechanism for the accreditation
before the Ombudsman’s Office of the direct family members of the 89 deceased victims
who were not identified in the Merits Report of the Inter-American Commission on
Human Rights that originated this case and must also announce in different media that
an effort is being made to identify the said family members so that they can “be
provided with reparation as beneficiaries of the measures set out in the friendly
settlement agreement” (paras. 85 to 90).
In other words, the issue that arises in relation to the decision made in the instant case
is how the said family members, third parties who did not take part in the proceedings
before the Court and whose number and identity is unknown, can determine whether or
not it is desirable to accredit themselves as such in order to exercise their right to be
provided with reparation, recognized in the Judgment in this case, if they do not know
the amount of the compensation ordered in it and cannot access this information.
E. Security reasons
Lastly, we must take into account that, not only are the “security reasons” cited in the
agreement to justify the requested confidentiality not explained or recorded in the
proceedings, but also, if they exist, they are probably related to the eventual
controversies or disputes that could arise among the victims’ next of kin in this case
based on their expectations concerning the quantum or amount of the compensation.
Therefore, it might be possible to maintain that the “security reasons” cited, although
not explained, in either the agreement or the Judgment, are related in this case to
creating the conditions required for the agreement to be endorsed by the Court and that,
consequently, once this endorsement was obtained, the requested confidentiality would
not be necessary in this regard.
It should be added that the precedent established by deciding the said confidentiality in
this Judgment based on “security reasons” that are not explained or reported could be
detrimental to the administration of justice by the Court, inasmuch as it could grant a
certain margin of doubt to the general public’s assessment of the discretionality of such
decisions that could be perceived as arbitrary.
And this is especially because the mere general mention of “security reasons” made by
the entity requesting the said confidentiality or secret, without specifying what this
consists in or is based on, is unreasonable and absolutely insufficient as justification for
the Judgment that grants this confidentiality or secret, also without indicating the
reasons that warrant it.
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