JOINT CONCURRING OPINION OF JUDGES
A.A. CANÇADO TRINDADE AND A. ABREU-BURELLI
1.
In voting in favour of the present Judgment on reparations delivered by the
Inter-American Court of Human Rights in the Loayza Tamayo versus Peru case, we
feel obliged to express our thoughts on the matter, given our belief in the need for
greater jurisprudential development in the matter of reparations for violations of
human rights. Contemporary doctrine seems to recognize this need, in beginning to
provide its first contributions towards greater precision to the scope of reparations in
the ambit of the International Law of Human Rights.
2.
Thus, contemporary doctrine on the matter has established the relationship
between the right to reparation, the right to truth and the right to justice (which
starts with the access to justice). The realization of those rights is hindered by
measures of domestic law, such as the so-called self-proclaimed amnesties
pertaining to violations of human rights, which lead to a situation of impunity1.
3.
Those measures are incompatible with the duty of States to investigate those
violations, rendering it impossible the vindication of the rights to truth and to the
realization of justice, as well as, consequently, of the right to obtain reparation. One
cannot thereby deny the close link between the persistence of impunity and the
hindering of the very duties of investigation and of reparation, as well as of the
guarantee of non-repetition of the harmful facts.
4.
The aforementioned measures are, moreover, incompatible with the general
obligation of States to respect and to secure respect for the protected human rights,
guaranteeing the free and full exercise of these latter (in the terms of Article 1(1) of
the American Convention on Human Rights). States are under the duty to eliminate
those measures (which constitute obstacles to the realization of human rights), in
conformity with the other general obligation to harmonize their domestic law with
1.
L. JOINET (RAPPORTEUR), LA CUESTIÓN DE LA IMPUNIDAD DE LOS AUTORES DE VIOLACIONES DE LOS
DERECHOS HUMANOS (DERECHOS CIVILES Y POLÍTICOS) - INFORME FINAL, ONU/COMISIÓN DE DERECHOS
HUMANOS, DOC. E/CN.4/SUB.2/1997/20, OF 26.06.1997, PP. 1-34; AND, FOR THE ECONOMIC, SOCIAL AND
CULTURAL RIGHTS, CF. EL HADJI GUISSÉ (SPECIAL RAPPORTEUR), LA CUESTIÓN DE LA IMPUNIDAD DE LOS AUTORES
DE VIOLACIONES DE LOS DERECHOS HUMANOS (DERECHOS ECONÓMICOS, SOCIALES Y CULTURALES) - INFORME
FINAL, ONU/COMISIÓN DE DERECHOS HUMANOS, DOC. E/CN.4/SUB.2/1997/8, OF 23.06.1997, PP. 1-43.
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