(Judgment of 09.22.2006), and in my Concurring Opinions in the Provisional
Protection Measures in the case of Eloísa Barrios et al. v. Venezuela (Order of
06.29.2005), of the Community of Paz de San José de Apartadó v. Colombia (Order of
02.02.2006), and of the Communities of Jiguamiandó and Curbaradó v. Colombia
(Order of 02.07.2006).
III.
The Expansion – and not the Restriction – of the Condition of
Victim under the American Convention.
39.
I have introduced, within this Court, the reasoning for the expansion of the
notion of victim for the effects of reparations, in order to include the next of kin (of
fatal victims) in their own right (Concurring Opinions in the case of Blake v.
Guatemala [merits and reparations, 1998 and 1999] and of Bámaca Velásquez v.
Guatemala [merits and reparations, 2000-2002). When holding this thesis, I did so
based on the discovery of human suffering, that is, based on the express
acknowledgment of the centralization of the suffering of the victims within the
framework of International Human Rights Law (my Concurring Opinions, v.g., in the
cases of the "Street Children " (Villagrán Morales et al) v. Guatemala [reparations,
2001], Bulacio v. Argentina [2003], Gómez Paquiyauri Brothers v. Peru [2004], Tibi v.
Ecuador [2004], Sawhoyamaxa Indigenous Community v. Paraguay [2006], Ximenes
Lopes v. Brazil [2006]).46 I have even insisted on the configuration of the notion of
victim also within the scope of provisional protection measures (my Concurring
Opinions, v.g., in the cases of Eloísa Barrios et al. v. Venezuela [2005], Community of
Paz de San José de Apartadó v. Colombia [2006], Communities of Jiguamiandó and
Curbaradó v. Colombia [2006]).47
40.
In the present case of La Cantuta v. Peru (Interpretation of Judgment, 2007), I
find myself in the obligation to once more defend the reasoning I had introduced in
the Court, and that was already a part of its constant jurisprudence, with regard to
the expansion of the notion of victim under the American Convention of Human
Rights, - due to a recent and regretful setback introduced by the Court in its
Judgment (of merits and reparations, of 11.29.2006) in the present case of La
Cantuta. In said Judgment, the Court stated that
"both the Inter-American Commission and the representatives [of the
victims] identified several brothers and sisters of the executed or disappeared
persons as alleged victims of the violation of Article 5 of the Convention.
However, in several of those cases, the evidence produced was insufficient to
enable the Court to establish actual damage to said next of kin. Accordingly, the
Court only considers victims those siblings in respect of whom sufficient
evidence was furnished." (para. 128)
Thus, the Court introduced a new criterion, more restrictive for victims, that
constitutes a regretful detour from its prior constant jurisprudence, as well as a
setback that is, in my opinion, unsustainable.
41.
What additional evidence does the Court require from the representatives of
.
Cf. A.A. Cançado Trindade, "Fragmentos de Primeras Memorias de la Corte
Interamericana de Derechos Humanos", in Jornadas de Derecho Internacional (Buenos
Aires/Argentina, November 2006), Washington D.C., OAS/Subsecretariat of Legal Affairs, 2007
(in press).
46
.
For the texts of my Opinions quoted here, cf. A.A. Cançado Trindade, Derecho
Internacional de los Derechos Humanos - Esencia y Trascendencia (Votos en la Corte
Interamericana de Derechos Humanos, 1991-2006), 1a. ed., México, Edit.Porrúa/Universidad
Iberoamericana, 2007, pages 156-169, 186-204, 211-223, 321-330, 363-374, 251-267, 417432, 444-456, 694-723, 748-765, 952-958, 976-979, and 980-983.
47