CONCURRING VOTE OF THE JUDGE A.A. CANÇADO TRINDADE
1.
Destiny presented once again, during my period of service as a Full Judge of
the Inter-American Court of Human Rights, the drama of the street children before
this Tribunal. Seven years after the Court’s first Judgment in the historic leading case
of the "Street Children " (Villagrán Morales et al.) versus Guatemala, (merits, 1999,
and reparations, 2001), and three years after the Judgment of the Court in the
dramatic case of Bulacio versus Argentina (merits and reparations, 2003), the
subject of violence of children and youngsters in the streets once again occupies the
central position in a Judgment of this Court, in the present case of Servellón et al.
versus Honduras. When voting in the adoption of the present Judgment, I allow
myself to add to the same this Concurring Vote, with my personal reflections as the
grounds to my position regarding that discussed by the Court. I will focus my
reflections on the following matters: a) grounds for the State’s international
responsibility; b) foundations for international jurisdiction; c) the threats against
human rights within the decadence of social fabric; and d) the reaction of the Law:
the prohibitions of the jus cogens and the due reparatio revisited.
I.
Grounds for the State’s International Responsibility.
2.
In the present Judgment in the case of Servellón et al., the Court has
positively assessed the State’s acknowledgement of responsibility for the violations
against the rights protected by the American Convention (para. 77). However, the
terms of said acknowledgment do not cover the totality of the vindications included
in the petition (para. 75), AND, I allow myself to add, the terms of the
acknowledgment of the State’s responsibility, when it expressly excludes “the
existence of a context of alleged systematic violence of human rights, both tolerated
and consented” by the State (para. 54), set forth a matter that touches the
foundations of a State’s responsibility (including the basic distinctions between direct
and indirect responsibility, objective or absolute international responsibility, and
responsibility based on the offense (guilt), besides the matter of intentions (dolus) or
lack of as the configuration or not of an aggravated international responsibility).
3.
The Court, when facing the terms of the acknowledgment of the State’s
responsibility, made a mistake in its hasty discussion when it did not summon a
public hearing for this important case. The present hearing that was not held, would
have without doubt enriched the present Judgment, in three aspects: a) it would
have enriched the dossier and preliminary proceedings of the case (especially with
the positive attitude of procedural collaboration assumed by the State); b) it would
have applied in its totality the principle of the presence of both parties to the case in
what refers to the context of the same; and c) it would have served as satisfaction
(as a means of reparation) for the victims’ next of kin. But in the current desire –
that I do not share, and to which I am opposed, - of productivity of the Court
(accompanied of decisions that are inevitably rushed), the current senseless urge to
decide on the greatest number of cases in record time, deprived it of elements that
could have enriched this Judgment.
4.
In what refers to the present case of Servellón García et al., one cannot find
in the case file presented before this Court evidentiary elements that may lead to the
establishment of an intention (dolus) of the State to carry out a deliberate,
systematic, and massive violation of human rights in detriment of a segment of its