17
non-pecuniary damage, which does not require evidence:
"These sufferings extend equally to the closest members of the family, especially
those who had close emotional contact with the victim. The Court deems that evidence is
not required to reach this conclusion, even though in the instant case the suffering
caused to them has been proven." (para. 63)55
58.
In the case of Bámaca Velásquez, the Court found it “reasonable to presume that as
next of kin they should not have been indifferent to the loss of their brother," (para. 65(b)),
and, therefore, it set in equity the reparation due to them for non-pecuniary damages (para.
66). The clarifications obiter dicta of the Court in the mentioned cases of the “White Van”
(Paniagua Morales et al.) and of Bámaca Velásquez present the most reasonable criterion
regarding the matters in question, the criterions most in agreement with the needs for
protection under the American Convention. This is, in my opinion, the most lucid jurisprudence
of the Inter-American Court on the matter in question, which, in my opinion, must be taken up
again by the Court promptly, abandoning the restrictive, reactionary, and unsustainable
criterion it adopted in this regard in the recent Judgment on merits in the case of La Cantuta.
IV.
Centralization and Expansion of the Notion of Direct Victim Lato Sensu:
Considerations De Lege Ferenda.
59.
I could not conclude this Concurring Opinion without adding any brief considerations de
lege ferenda on a matter that has occupied my reflections for many years, that is, that of the
centralization and expansion of the notion of victim under the American Convention of Human
Rights. It would not be an exaggeration to weigh in that said notion in evolution constitutes an
open legal category – which has responded to the recurrent grave violation of human rights,
submitted to the knowledge of the Court in recent years. In this sense, the Court, when facing
the cases of massacres recently brought before it, has sometimes decided to leave the list of
victims open (for future additions, based on the factual complexities of the cases in question),
- instead of “closing” the list in the light of a static and dogmatic categorization of the condition
of victim.
60.
Therefore, the Court has acted, in this sense, correctly and as long as the possible
appearance of additional victims naturally has a direct relationship with the constant facts
described in the petitions originally presented to the knowledge of the Court, This has provided
a balance between the concomitant concerns in guaranteeing legal security in the search for
justice within the complex circumstances of this kind of cases, massacres or grave violations,
affecting a greater circle of people. This has been an promising development, which, in my
opinion, has served the needs of protection under the American Convention, in circumstances
never foreseen by the writers of the latter.
61.
In the end, human evil has no limits, and the reaction of the Law must be felt promptly,
taking into account the gravity of the violations to the rights protected by the American
Convention. Just like the notion of direct victim is, in my opinion, in constant evolution and
expansion (cf. supra), the same thing happens with the concept of injured party under the
American Convention, especially having present the duty of reparation. The concept of “injured
party” (Article 63(1) of the American Convention), even though prima facie more ample,
corresponds in the end, in my opinion, to the concept itself of victim lato sensu (covering the
direct, indirect, and possible victims), as I stated two decades ago in a course I gave in the
55
.
Emphasis added; and cf. paras. 65(b) and (c), 79 and 81.
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