31.
The victims of bad treatments and torture (v.g., cases of Loayza Tamayo versus
Peru, 1997-1998; Suárez Rosero versus Ecuador, 1997-1999; Cantoral Benavides versus
Peru, 2000-2001; Tibi versus Ecuador, 2004; among others), who have been strongly
humiliated, for the first time feel legally equal to the respondent States, upon personally
presenting their case before the Court and personally vindicating before it the reparation.
The victims act as real subject of law and not as mere objects of protection. This also
contributes to avoiding the repetition of the violations. The jurisprudence itself must
reflect the interdisciplinary nature (Law, psychology, anthropology, sociology) in attention
to and in the reparations ordered in favor of victims.
32.
During the years of my Presidency of the Inter-American Court, I invariably made
emphasis in receiving, in public hearings, not only witnesses, but also experts from
different areas of human knowledge. I have always given said public hearings a greater
relevance, based on a series of reasons: a) they contribute to the materialization of the
equality of arms (égalité des armes), so the parties have equal opportunities to present
all their arguments and evidence before the Court; b) they guarantee compliance with
the principle of having the presence of both parties to an action,27 and therefore the
parties feel, themselves, satisfied that all their evidence has been produced before the
Court for the determination of the facts, and all their arguments have been presented
before the Court for its evaluation of what occurred; and c) they constitute, for the
victims, as previously stated, a form of reparation, and for them one of the most
important.
33.
To the contrary of what is underlying the decision of the majority of the Court
regarding the specific matters in the present case, the doubts that have to be clarified,
both juridical and factual, are not only the Judges’ doubts, but also – and mainly – the
parties’ doubts. And, for this purpose, public hearings are not only more appropriate but
also necessary. Therefore, in the course of the present proceedings of Interpretation of
the Judgment, I allowed myself to address a letter to the Secretariat of the Court, on
August 10, 2007, recommending that a public hearing be held28 in relation to the
requests – presented by all the procedural parties participating in the present case of the
Castro Castro Prison –of Interpretation of the Judgment, but the majority of the Tribunal
preferred to do without said hearing.
34.
The present case of the Castro Castro Prison is paradigmatic in what refers to the
bad conditions of detention and the violent attack against defenseless people, who were
under the State’s custody. The petitioners presented arguments better substantiated than
those of the Inter-American Commission itself (v.g., regarding the matter of the principle
of proportionality), in a demonstration that the victims, as subjects of International Law,
are in better conditions of presenting their case before a tribunal such as the InterAmerican Court than any intermediary presumably acting on their behalf. In reference to
the international subjectivity of groups of individuals, the case of the Moiwana
Community versus Suriname (Judgment on merits of 06.15.2005) presents an
appropriate illustration of a case of rights of the people.29
.
For a recent general study, cf., [Various Authors,] Le principe du contradictoire
devant les juridictions internationales (eds. H. Ruiz Fabri and J.-M. Sorel), Paris, Pédone,
2004, pp. 1-195.
27
.
28
IACHR, document CDH-11.015/288, pp. 1-2 (internal circulation).
.
And, specifically, on the legal subjectivity of people within international law. For
example, the Court recalled, in its Judgment, that six Maroons communities in Suriname,
29
10