CONCURRING OPINION OF JUDGE SERGIO GARCÍA RAMÍREZ
IN THE JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS
IN THE CASE OF GARCÍA PRIETO (EL SALVADOR) OF NOVEMBER 20, 2007
A)
The Duty to Investigate
1.
In the judgment issued by the Inter-American Court of Human Rights in the
Case of García Prieto (El Salvador) of November 20, 2007, which this opinion
accompanies, the necessity of carrying forward certain investigative steps has been
examined, and which have been found to be incomplete but required in order to
establish the truth about certain events that could have effects under the criminal
law.
2.
The duty to undertake these investigative steps has a double and cyclical
source, which is recognized by a State which is a party to the treaty on human rights
and recognizes the jurisdiction of the international tribunal in contentious matters:
primarily, the treaty itself –the American Convention- and as a consequence of this,
and the recognition of jurisdiction, the rulings pronounced by the Court, which is
called to interpret and apply the Convention, in its terms and in the terms of the
Statute that derives from it.
B)
Adoption of measures for the fulfillment of orders: the process
of national reception
3.
It is possible that the fulfillment of this duty to investigate (I will leave for
another opportunity the issue of the reach of the investigation and its transcendence
as a component of judicial access and punishment, an issue upon which the Court
invites reflection in one paragraph) raises issues which originate in the domestic
fora: obstacles raised or normative gaps. The Inter-American Tribunal has often
ruled, following the orientation of the Law of treaties and the rules on the subject of
international responsibility, upon the fulfillment –by the States Parties- of the
general dispositions (normative) or particular dispositions (jurisdictional, with a
double impact: in the actual case and in the system as a while) of the international
order. I will not say more on this subject.
4.
There is no doubt about the State’s obligation to adopt the measures of a
legislative or other character (Article 2 of the American Convention) necessary for
the observance and protection of the rights and liberties included in that instrument.
That is why, in this Judgment, conscious of the circumstances that existed and the
arguments that could arise from them, it was necessary to state in an emphatic
paragraph: “is incumbent upon the States to create norms and adjust their practices
as necessary in order to comply with the orders and decisions of the Inter-American
Court, if such norms and practices do not yet exist.” The command is found, then, in
the international order that the States accept; the solution, with its particularities, is
found in the hands (and in the duties) of these States.
5
This expression accentuates, once more, the necessity that the States
arrange what is necessary, in their own internal order, with urgent attention, the
commitments contracted with the help of the international order, adopted with
mandatory force by the same States through their own sovereign decisions. It has
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