SEPARATE OPINION OF JUDGE SERGIO GARCÍA RAMÍREZ
CONCERNING THE JUDGMENT OF THE INTER-AMERICAN COURT
OF HUMAN RIGHTS IN GOIBURÚ ET AL. V. PARAGUAY OF
SEPTEMBER 22, 2006
1.
I concur with my colleagues’ opinion as expressed in the judgment in this
case, without detriment to establishing – or reiterating – some concerns relating to
certain concepts, whose meaning and scope requires commentary. Evidently, this
clarification – in which I respect the opinion of those who have a different point of
view – does not alter my concurring participation in the unanimous decision that
sustains the Court’s ruling on merits and reparations.
2.
The concept of the State’s “aggravated responsibility” has been used in the
judgment I am examining, and this needs to be re-examined. For several years, I
have been referring to this element, as can be seen in my separate opinion in
relation to the judgment delivered by the Inter-American Court in the Case of Myrna
Mack Chang of November 25, 2003. Evidently, I do not ignore or question the useful
burden of reproach that this expression may have when it is used to publicly assess
certain facts and encourage their rejection.
3.
The expression “aggravated responsibility” suggests that there is a series of
responsibilities of different importance or intensity: ranging from slight to grave, and
possibly passing through intermediate categories. To the contrary, the reference to
“aggravated” responsibilities would have no meaning. Moreover, this turn of phrase
should have an equivalence in the descending order of alleged responsibilities:
“attenuated responsibility,” which has never appeared in the Court’s case law.
4.
In my opinion, this “aggravated” responsibility does not exist, and neither
does
“attenuated”
responsibility,
because
simple
responsibility
(without
considerations of intensity or nuance) implies the possibility or need “to respond” for
certain acts owing to legal evidence of attribution that links specific conduct to a
particular person who must respond for it juridically by the establishment of certain
consequences.
5.
Obviously, this does not mean that human rights violations lack their “own
characteristics” and are always equally grave. It is the responsibility that is uniform –
a logical juridical connection between an act, the person responsible and certain
consequences – not the facts from which this derives, or the effects that a court
attributes to them. In other words, the facts may be described as slight, grave or
extremely grave, and the consequences, as ordinary, severe or very severe. To the
contrary, responsibility is merely responsibility.
6.
I will give some example to clarify what I am endeavoring to say. The
violation of the right to humane treatment is extremely grave – owing to the
importance of the juridical rights affected and the type of the acts that comprise this
violation – when a victim is subjected to torture. The violation of the right to life
becomes notoriously and intensely grave when it is the deprivation of the life of a
series of individuals who are executed brutally. The violation of the right to liberty,
among others, is very grave when it is practiced arbitrarily, prolonged for some time,
and becomes forced disappearance in the terms of international law. It can also be
maintained that the facts are more serious when the authors are senior State
officials, from whom there are higher expectations of guarantee – hence, they are
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