CONCURRING OPINION OF
JUDGE A.A. CANÇADO TRINDADE
1.
I vote in favour of the adoption, by the Inter-American Court of Human Rights,
of the present Judgment, of historical importance, on the merits in the Barrios Altos
case, as from the recognition of international responsibility expressed by the Peruvian
State. As the Court observed (par. 40), such recognition constituted a positive
contribution by the respondent State to the evolution of the application of the norms of
protection of the American Convention on Human Rights. The oral arguments, both of
the Peruvian State and the Inter-American Commission on Human Rights, developed in
the memorable public hearing held today, 14 March 2001, in the premises of the
Tribunal, opened a new perspective in the experience of the Court in cases of that
recognition (allanamiento) 1 on the part of the respondent State 2.
2.
Given the high relevance of the legal questions dealt with in the present
Judgment, I feel obliged to express, under the always merciless pressure of time, my
personal thoughts on the matter. The Court, in any circumstances, including in cases of
allanamiento, as from the recognition on the part of the respondent State of its
international responsibility for acts in violation of the protected rights, has the full
faculty to determine motu proprio the legal consequences of such wrongful acts, such
determination no being conditioned by the terms of the allanamiento. By acting in that
way, the Court is making use of the powers which are inherent to its judicial function 3.
As I have always sustained within the Court, in any circumstances the Court is master
of its jurisdiction 4.
3.
In the present case of Barrios Altos, by making free and full use, as it is
incumbent upon it, of the powers which are inherent to its judicial function, the Court,
for the first time in a case of allanamiento, besides having determined as admissible
the recognition of international responsibility on the part of the respondent State, has
also established the juridical consequences of such allanamiento, as can be inferred
from the categorical paragraphs 41 and 43 of the present Judgment, which provide in
an unequivocal way the understanding of the Court in the sense that
- "(...) The provisions of amnesty, the provisions of prescription y and the
establishment of factors excluding responsibility which are meant to obstruct the
investigation and sanction of those responsible for grave violations of human rights such
as torture, summary, extralegal or arbitrary executions, and forced disappearances, are
inadmissible, all of them being prohibited for violating non-derogable rights recognized by
the International Law of Human Rights.
1
.
Article 52(2) of the Rules of Procedure in force of the Inter-American Court of Human Rights.
2
.
Cf., earlier on, the cases Aloeboetoe (1991), Series C, n. 11; El Amparo (1995), Series C, n. 19;
Garrido and Baigorria (1996), Series C, n. 26; Benavides Cevallos (1998), Series C, n. 38; Caracazo (1999),
Series C, n. 58; and Trujillo Oroza (2000), Series C, n. 64.
3
.
Cf., to this effect, my Dissenting Opinion in the case Genie Lacayo (Revision of Sentence, Resolution
of 13.09.1997), Series C, n. 45, par. 7.
4
.
Cf., e.g., my Concurring Opinion in Advisory Opinion n. 15, on the Reports of the Inter-American
Commission on Human Rights (1997), Series A, n. 15, pars. 5-7, 9 and 37; my Concurring Opinion in the
Resolution on Provisional Measures of Protection in the case James and Others, of 11.05.1999, pars. 6-8, in
Inter-American Court of Human Rights, Compendio de Medidas Provisionales (July 1996/June 2000), Series
E, n. 2, pp. 341-342.