CONCURRING OPINION OF JUDGE DIEGO GARCÍA-SAYÁN WITH RESPECT TO THE ORDER TO MONITOR COMPLIANCE WITH THE JUDGMENT IN THE CASE OF SERVELLÓN GARCÍA ET AL. v. HONDURAS NOVEMBER 22, 2011 1. The Inter-American Court of Human Right’s (hereinafter “the Inter-American Court,” “the Court,” or “the Tribunal”) ability to monitor compliance with its own Judgments is one of the attributes most relevant to the protection of human rights. The Tribunal exercises this right even in its earliest decisions, and it is a tool fundamental to ensuring that these rulings are fulfilled. The monitoring of compliance phase has thus emerged as a central aspect for the protection of human rights in the Americas. This is due not only to the fact that it guarantees, in the specific case to which a State is party, “that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party,”1 but also because its practical effect is also felt among the other States parties, promoting the full validity of human rights. 2. An appreciation for the procedure of monitoring compliance with judgments adopted by the Tribunal, reinforced by the holding of hearings for this purpose, leads me to affirm that this tool has become a vital and successful mechanism.2 Through this same procedure a new dynamic has been imprinted on this stage, facilitating and promoting significant advances in the implementation of measures to ensure compliance with that ordered by the Tribunal in its rulings, generating participatory spaces of dialogue and cooperation between state authorities and the victims or their representatives. This new dynamic has been very well-received by the different actors involved in a case before the Court. Along these lines, it is worth recalling that indicated by the General Assembly of the Organization of American States, which has, since 2009, repeatedly asserted “the importance and the constructive character of the private hearings for monitoring compliance with the judgments issued by the 1 2 Article 63 of the American Convention on Human Rights. The continuous practice of the Tribunal since 1989 has been to solicit reports from the State. Generally, this begins with an initial report, which should be submitted to the Tribunal at the end of one year from the time the judgment was handed down. The observations of the victims or their representatives, and the Inter-American Commission on Human Rights, are required subsequently. Having obtained all the relevant and necessary information, the Court emits an Order evaluating the level of progress with regard to compliance with its rulings, and providing guidance in order to lead to the fulfillment of all pending measures. While this procedure was carried out essentially as written, in 2007 an innovative mechanism was implemented by the Court, namely, the conducting of hearings to monitor compliance with judgments. At these hearings, the parties have the opportunity to learn, in a direct way, their positions, to react before each other and the Tribunal, to “suggest some alternative solutions, call attention to noncompliance stemming from a lack of desire, promote the planning – among all involved - of schedules for compliance, and even make available their facilities so that the parties might have conversations which often are difficult to carry out in the pertinent State itself” (Cfr. Annual Report of the InterAmerican Court of Human Rights of 2010, pg. 10). This practice came to be consolidated into regulation by Article 69(3) of the existing Rules of Procedure, in which the possibility of the Court to hold a hearing when it considers it pertinent is expressly established (Cfr. Rules of Procedure approved by the Inter-American Court in its LXXXV Regular Period of Sessions, held November 16 to 28, 2009). .