2
grounds for my position, as a surviving Judge of the Court, in this Judgment of Interpretation
in the case of La Cantuta v. Peru. Maybe my reflections, which I document in the present
Concurring Opinion, will actually be useful. I hope so. The imponderable has called me here to
document them in the form of an addendum to my considerations previously developed in
what I thought would be my last Opinion in the Court, in my Concurring Opinion in the
Judgment on merits and reparations (of 11.29.2006) in the present case of La Cantuta.
6.
I do not expect to convince with this the current majority of the Court in the cas
d'espèce, whose line of thought I am already aware of and I do not share in different aspects.
But maybe in the future my personal reflections, which I hereby spread upon the record, can
be considered appropriate by a new composition of this Tribunal in the years to come. And
even if they are not, maybe they will be of some use for those who wish to interest themselves
in the lessons obtained from the work in the Court by a survivor of the same, who is aware of
the dangers (of the experience) lived in it and the feeling of being able to continue to
contribute with the cause of the protection of human rights, based now also on cumulative
experience.
7.
My considerations, developed below, return to that reasoned by the Court in the VI part
of the present Judgment of Interpretation (paras. 24-35). Agreeing with the deliberation of the
Court in the sense that Mrs. Carmen Juana Mariños Figueroa and Mr. Marcelino Marcos Pablo
Meza, sister and brother of two fatal victims in the present case of La Cantuta (Messrs. Juan
Gabriel Mariños Figueroa and Heráclides Pablo Meza, respectively) are victims of the violation
of Articles 8(1) and 25 (taken jointly) of the American Convention (access to justice lato sensu,
covering the guarantees of the due legal process), I have concurred with my vote to the
adoption of the present Judgment of Interpretation.
8.
But I do not feel completely satisfied, since the Court did not go further, in the previous
Judgment of merits and reparations or in the present Judgment of Interpretation in the case of
La Cantuta, with regard to Article 5(1) of the American Convention (right to physical, mental,
and moral personal integrity), in the most lucid and advanced line of its previous constant
jurisprudence. When demanding evidence of non-pecuniary damages in the case of La
Cantuta, the Court self limited itself, it stopped its own jurisprudence in this sense, and it
introduced a criterion that in my opinion is not sustainable and harmful for the effective
international protection of human rights. Therefore, I am in the obligation to substantiate my
discrepancy with this new setback, along with many others since the case of the Serrano Cruz
Sisters v. El Salvador (Judgments of preliminary objections, of 11.23.2004, and of merits and
reparations of 03.01.2005), issued in its most recent jurisprudence.
9.
What moves me, to elaborate this Concurring Opinion, which is what has always moved
me, continues in effect to be the search for a more effective protection of the rights protected
by the American Convention on Human Rights. Thus, taking into account the matter
mentioned, presented in the legal procedure of the present Judgment of Interpretation in the
case of La Cantuta, I will focus my reflections, which I will present below, on three matters
that I consider of great importance. The first consists of considerations regarding the
conceptualization of person and victim within the human capacity of thought. Said
considerations cover the counter-position of personality with regard to individuality,
personalism beyond individualism, legal personalism and subjective law, the evolution of
subjective law toward the new dimension of the international juridical protection of human
beings, and the conceptualization of victim and the contribution of International Human Rights
Law.
10.
The second point refers to the necessary expansion – never the restriction – of the
condition of victim under the American Convention. And the third aspect, related to the
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