Inter-American Court of Human Rights

e) Costs and Expenses

243. As the Court has stated on previous occasions, costs and fees are contemplated within the concept of reparations as enshrined in Article 63(1) of the American Convention, since the victims’ endeavor to obtain justice in the domestic as well as international levels lead to expenses that must be compensated when the State’s international responsibility has been determined in a conviction judgment. With regard to their reimbursement, the Court must prudently assess their extent, which involve the expenses incurred when acting before the authorities within the domestic jurisdiction as well as those incurred in the course of proceedings before the Inter-American System, taking into account the particular circumstances of the specific case and the nature of international jurisdiction in the protection of human rights. Such estimate may be made on grounds of equitable principles and in consideration of the expenses reported and evidenced by the parties, provided they are reasonable.¹⁸⁷
244. The Court takes into account that the above-mentioned relatives acted through their representatives in the domestic jurisdiction and before the Commission and this Court as well. In this regard, while the representatives in the instant case filed requests for reimbursement of costs and expenses, they failed to submit supporting documents.
245. Therefore, based on equitable standards, the Court orders the State to pay as costs and expenses incurred in the domestic jurisdiction and during the proceedings before the Inter-American System, the amount of US$40,000.00 (four thousand United States dollars) or an equivalent amount in Peruvian currency, to Andrea Gisela Ortiz-Perea and Alejandrina Raida Cóndor-Saez, who will in turn distribute said amount among their representatives as they deem appropriate.

F) Method of Compliance
246. In order to comply with the instant Judgment, the State must pay the compensations for pecuniary and non pecuniary damage, and reimburse costs and expenses, within the term of one year following notice of this Judgment (supra paras. 214, 215, 220 and 245). With regard to the publication of the instant Judgment and the public acknowledgement of liability and apology (supra paras. 237 and 235), the State has a six-month term, following notice of this Judgment, to comply with said obligations. As regards the adequate treatment of the disappeared victims' next of kin, the State must provide for the same from the date of notice of this Judgment and for the period of time deemed necessary (supra para. 238). Furthermore, Perú must take without delay the necessary actions to effectively conduct and complete, within a reasonable time, the ongoing investigations and the criminal proceedings pending in the domestic courts, and to carry out, as the case may be, the necessary investigations to determine the criminal liability of the perpetrators of the violations committed to the detriment of the victims (supra paras. 222 to 228). The State must forthwith carry out the search and localization of the remains of the victims and, once located, the State must deliver them as soon as practicable to the next of kin and give them dignified burial (supra paras. 229 to 232. With regard to the education programs on human rights, the State must implement them within a reasonable time (supra paras. 239 to 242).
247. The compensations established to the benefit of the relatives of the 10 executed or disappeared victims shall be delivered directly to each beneficiary. If a beneficiary dies before the date of payment, the compensation must be paid to the heirs according to applicable domestic laws.¹⁸⁸
248. If the beneficiaries of compensations are not able to receive the payments within the specified term, due to causes attributable to them, the State shall deposit said amounts in an account to the beneficiary’s name or draw a certificate of deposit from a reputable Peruvian financial institution, in United States dollars, under the most favorable financial terms the laws in force and customary banking practice allow. If after ten years compensations were still unclaimed, these amounts plus any accrued interest shall be returned to the State.
249. Payment of the costs and expenses incurred by the representatives in said proceedings shall be made to Andrea Gisela Ortiz-Perea and Alejandrina Raida Cóndor-Saez, who will in turn make the pertinent payments (supra para. 245).
250. The State may discharge its pecuniary obligations by tendering United States dollars or an equivalent amount in the currency of Perú, at the New York, USA exchange rate between both currencies on the day prior to the day payment is made.
251. The amounts allocated in this Judgment as compensations and reimbursement of costs and expenses, shall not be affected, reduced or conditioned by taxing conditions now existing or hereafter created. Therefore, beneficiaries shall therefore receive the total amount as per the provisions herein.
252. Should the State fall into arrears with its payments, Peruvian banking default interest rates shall be paid on the amount owed.
253. In accordance with its constant practice, the Court retains the authority emanating from its jurisdiction and the provisions of Article 65 of the American Convention, to monitor full compliance with this judgment. The instant case shall be closed once the State implements in full the provisions herein. Perú shall, within a year, submit to the Court a report on the measures adopted in compliance with this Judgment.

XIII

Operative Paragraphs
254. Therefore,

The Court,
Decides:
Unanimously
1. To admit the acknowledgement of international liability made by the State for the violation of the rights protected under Articles 4, 5 and 7 of the American Convention on Human Rights, in relation to the obligation to respect rights provided for in Article 1(1) thereof, to the detriment of Muñoz Sánchez, Dora Oyague-Fierro, Marcelino Rosales-Cárdenas, Bertila Lozano-Torres, Luis Enrique Ortiz-Perea, Armando Richard Amaro-Cóndor, Robert Edgar Teodoro-Espinoza, Heráclides Pablo-Meza, Juan Gabriel Mariños-Figueroa and Felipe Flores-Chipana, as set forth in paragraphs 40, 41, 43, 44 and 52 of the instant Judgment.
2. To accept the partial acknowledgement of international liability made by the State for the violation of the rights to a fair trial and judicial protection established in Articles 8(1) and 25 of the American Convention, in relation to the obligation to respect the rights enshrined in Article 1(1) thereof, as set forth in paragraphs 40 to 44 and 53 of the instant Judgment.
Declares:
Unanimously that:
3. The State violated the rights protected in Articles 4(1), 5(1) and 5(2) and 7 of the American Convention on Human Rights, in relation to the obligation to respect rights provided for in Article 1(1) thereof, to the detriment of Muñoz Sánchez, Dora Oyague-Fierro, Marcelino Rosales-Cárdenas, Bertila Lozano-Torres, Luis Enrique Ortiz-Perea, Armando Richard Amaro-Cóndor, Robert Edgar Teodoro-Espinoza, Heráclides Pablo-Meza, Juan Gabriel Mariños-Figueroa and Felipe Flores-Chipana, as set forth in paragraphs 81 to 98 and 109 to 116 of the instant Judgment.
4. No facts allow this Court to conclude that the State violated the right to juridical personality established in Article 3 of the American Convention on Human Rights, for the reasons detailed in paragraphs 117 to 121 of the instant Judgment.
5. The State violated the right to humane treatment enshrined in Article 5(1) of the American Convention on Human Rights, in relation to the obligation to respect rights provided for in Article 1(1) thereof, to the detriment of Antonia Pérez-Velásquez, Margarita Liliana Muñoz-Pérez, Hugo Alcibíades Muñoz-Pérez, Mayte Yu yin Muñoz-Atanasio, Hugo Fedor Muñoz-Atanasio, Carol Muñoz-Atanasio, Zorka Muñoz-Rodríguez, Vladimir Ilich Muñoz-Sarria, Rosario Muñoz-Sánchez, Fedor Muñoz-Sánchez, José Esteban Oyague-Velazco, Pilar Sara Fierro-Huamán, Carmen Oyague-Velazco, Jaime Oyague-Velazco, Demesia Cárdenas-Gutiérrez, Augusto Lozano-Lozano, Juana Torres de Lozano, Víctor Andrés Ortiz-Torres, Magna Rosa Perea de Ortiz, Andrea Gisela Ortiz-Perea, Edith Luzmila Ortiz-Perea, Gaby Lorena Ortiz-Perea, Natalia Milagros Ortiz-Perea, Haydee Ortiz-Chunga, Alejandrina Raida Cóndor-Saez, Hilario Jaime Amaro-Ancco, María Amaro-Cóndor, Susana Amaro-Cóndor, Carlos Alberto Amaro-Cóndor, Carmen Rosa Amaro-Cóndor, Juan Luis Amaro-Cóndor, Martín Hilario Amaro-Cóndor, Francisco Manuel Amaro-Cóndor, José Ariol Teodoro-León, Edelmira Espinoza-Mory, Bertila Bravo-Trujillo, José Faustino Pablo-Mateo, Serafina Meza-Aranda, Dina Flormelania Pablo-Mateo, Isabel Figueroa-Aguilar, Román Mariños-Eusebio, Rosario Carpio-Cardoso-Figueroa, Viviana Mariños-Figueroa, Marcia Claudina Mariños-Figueroa, Margarita Mariños-Figueroa de Padilla, Carmen Chipana de Flores and Celso Flores-Quispe, as set forth in paragraphs 81 to 98 and 122 to 129 of the instant Judgment.
6. The State violated the rights to a fair trial and judicial protection enshrined in Articles 8(1) and 25 of the American Convention on Human Rights, in relation to the obligation to respect rights provided for in Article 1(1) thereof, to the detriment of Antonia Pérez-Velásquez, Margarita Liliana Muñoz-Pérez, Hugo Alcibíades Muñoz-Pérez, Mayte Yu yin Muñoz-Atanasio, Hugo Fedor Muñoz-Atanasio, Carol Muñoz-Atanasio, Zorka Muñoz-Rodríguez, Vladimir Ilich Muñoz-Sarria, Rosario Muñoz-Sánchez, Fedor Muñoz-Sánchez, José Esteban Oyague-Velazco, Pilar Sara Fierro-Huamán, Carmen Oyague-Velazco, Jaime Oyague-Velazco, Demesia Cárdenas-Gutiérrez, Augusto Lozano-Lozano, Juana Torres de Lozano, Víctor Andrés Ortiz-Torres, Magna Rosa Perea de Ortiz, Andrea Gisela Ortiz-Perea, Edith Luzmila Ortiz-Perea, Gaby Lorena Ortiz-Perea, Natalia Milagros Ortiz-Perea, Haydee Ortiz-Chunga, Alejandrina Raida Cóndor-Saez, Hilario Jaime Amaro-Ancco, María Amaro-Cóndor, Susana Amaro-Cóndor, Carlos Alberto Amaro-Cóndor, Carmen Rosa Amaro-Cóndor, Juan Luis Amaro-Cóndor, Martín Hilario Amaro-Cóndor, Francisco Manuel Amaro-Cóndor, José Ariol Teodoro-León, Edelmira Espinoza-Mory, Bertila Bravo-Trujillo, José Faustino Pablo-Mateo, Serafina Meza-Aranda, Dina Flormelania Pablo-Mateo, Isabel Figueroa-Aguilar, Román Mariños-Eusebio, Rosario Carpio-Cardoso-Figueroa, Viviana Mariños-Figueroa, Marcia Claudina Mariños-Figueroa, Margarita Mariños-Figueroa de Padilla, Carmen Chipana de Flores and Celso Flores-Quispe, as set forth in paragraphs 81 to 98 and 135 to 161 of the instant Judgment.
7. The State violated the obligation to adopt domestic legal provisions as may be necessary to adapt its domestic legislation to the provisions of the American Convention on Human Rights, established in Article 2 thereof, in relation of Articles 4, 5, 7, 8(1), 25 and 1(1) thereof, during the term Amnesty "laws" No. 26,479 of June 14, 1995 and No. 26,492 of June 28, 1995 were applied in the instant case. From said period until now, this Court has not been able to prove that the State violated the obligation established in Article 2 of the Convention, as a result of having adopted measures aimed at eliminating the effects that amnesty “laws" might have had, for they were not effective at all, are not currently effective and will not be in effect in the future, as set forth in paragraphs 81 to 98 and 165 to 189 of the instant Judgment.
8. This Judgment is per se a form of reparation.
And Rules:
Unanimously that:
9. The State must take without delay the necessary actions to effectively conduct and complete, within a reasonable time, the ongoing investigations and the criminal proceedings pending in the domestic courts, and to carry out, as the case may be, the necessary investigations to determine the criminal liability of the perpetrators of the violations committed to the detriment of Hugo Muñoz-Sánchez, Dora Oyague-Fierro, Marcelino Rosales Cárdenas, Bertila Lozano-Torres, Luis Enrique Ortiz-Perea, Armando Richard Amaro-Cóndor, Robert Edgar Teodoro-Espinoza, Heráclides Pablo-Meza, Juan Gabriel Mariños-Figueroa and Felipe Flores-Chipana, as set forth in paragraph 224 of the instant Judgment. The State must adopt all judicial and diplomatic measures to prosecute and, in turn, punish the perpetrators of the violations committed in the instant case and file any corresponding extradition request under applicable domestic and international rules, as set forth in paragraphs 224 to 228 of the instant Judgment.
10. The State must forthwith carry out the search and localization of the mortal remains of Hugo Muñoz-Sánchez, Dora Oyague-Fierro, Marcelino Rosales-Cárdenas, Armando Richard Amaro-Cóndor, Robert Edgar Teodoro-Espinoza, Heráclides Pablo-Meza, Juan Gabriel Mariños-Figueroa and Felipe Flores-Chipana and, once located, the State must deliver them as soon as practicable to the relatives and bear the burial costs, as set forth in paragraph 232 of the instant Judgment.
11. The State must publicly acknowledge its liability within a term of six months, as set forth in paragraph 235 of the instant Judgment.
12. The State must ensure that, within the term of one year, the 10 individuals declared executed or forcefully disappeared victims in the instant case shall be represented in the memorial named “El Ojo que Llora” (The Crying Eye) if they are not represented so far and provided their relatives so desire; in doing so, the State must coordinate the victims’ relatives’ efforts to place a sign with the name of each victim, in the manner that may best fit the characteristics of the memorial, as set forth in paragraph 236 of the instant Judgment.
13. The State must publish, within the term of six months, at least once in the Official Gazette and in another national daily newspaper, paragraphs 37 to 44 and 51 to 58 of the chapter related to the partial acknowledgement, the proven facts in the instant Judgment, without the corresponding footnotes, and paragraphs 81 to 98, 109 to 116, 122 to 129, 135 to 161 and 165 to 189, and the operative paragraphs thereof, as set forth in paragraph 237 of the instant Judgment.
14. The State must provide the relatives of Hugo Muñoz-Sánchez, Dora Oyague-Fierro, Marcelino Rosales-Cárdenas, Bertila Lozano-Torres, Luis Enrique Ortiz-Perea, Armando Richard Amaro-Cóndor, Robert Edgar Teodoro-Espinoza, Heráclides Pablo-Meza, Juan Gabriel Mariños-Figueroa and Felipe Flores-Chipana, at their discretion and for as long as necessary, free of charge and at national health-care facilities, with any necessary treatment which shall comprise provision of medicines, as set forth in paragraph 238 of the instant Judgment.
15. The State must implement, on a permanent basis and within a reasonable time, human rights-oriented programs for the members of intelligence services, the Armed Forces and the National Police, as well as for prosecutors and judges, as set forth in paragraphs 240 to 242 of the instant Judgment.
16. The State must pay Andrea Gisela Ortiz-Perea, Antonia Pérez-Velásquez, Alejandrina Raida Cóndor-Saez, Dina Flormelania Pablo-Mateo, Rosario Muñoz-Sánchez, Fedor Muñoz-Sánchez, Hilario Jaime Amaro-Ancco, Magna Rosa Perea de Ortiz, Víctor Andrés Ortiz-Torres, José Ariol Teodoro-León, Bertila Bravo-Trujillo and José Esteban Oyague-Velazco, within the term of one year, the amounts set out in paragraphs 214 and 215 of the instant Judgment, as compensation for pecuniary damage, as set forth in paragraphs 246 to 248 and 250 to 252 thereof.
17. The State must pay Antonia Pérez-Velásquez, Margarita Liliana Muñoz-Pérez, Hugo Alcibíades Muñoz-Pérez, Mayte Yu yin Muñoz-Atanasio, Hugo Fedor Muñoz-Atanasio, Carol Muñoz-Atanasio, Zorka Muñoz-Rodríguez, Vladimir Ilich Muñoz-Sarria, Rosario Muñoz-Sánchez, Fedor Muñoz-Sánchez, José Esteban Oyague-Velazco, Pilar Sara Fierro-Huamán, Carmen Oyague-Velazco, Jaime Oyague-Velazco, Demesia Cárdenas-Gutiérrez, Augusto Lozano-Lozano, Juana Torres de Lozano, Víctor Andrés Ortiz-Torres, Magna Rosa Perea de Ortiz, Andrea Gisela Ortiz-Perea, Edith Luzmila Ortiz-Perea, Gaby Lorena Ortiz-Perea, Natalia Milagros Ortiz-Perea, Haydee Ortiz-Chunga, Alejandrina Raida Cóndor-Saez, Hilario Jaime Amaro-Ancco, María Amaro-Cóndor, Susana Amaro-Cóndor, Carlos Alberto Amaro-Cóndor, Carmen Rosa Amaro-Cóndor, Juan Luis Amaro-Cóndor, Martín Hilario Amaro-Cóndor, Francisco Manuel Amaro-Cóndor, José Ariol Teodoro-León, Edelmira Espinoza-Mory, Bertila Bravo-Trujillo, José Faustino Pablo-Mateo, Serafina Meza-Aranda, Dina Flormelania Pablo-Mateo, Isabel Figueroa-Aguilar, Román Mariños-Eusebio, Rosario Carpio-Cardoso-Figueroa, Viviana Mariños-Figueroa, Marcia Claudina Mariños-Figueroa, Margarita Mariños-Figueroa de Padilla, Carmen Chipana de Flores and Celso Flores-Quispe, within the term of one year, the amounts set out in paragraph 220 of the instant Judgment, as compensation for non pecuniary damage, as set forth in paragraphs 219, 246 to 248 and 250 to 252 thereof.
18. The State must pay, within the term of one year, the amounts set out in paragraph 245 of the instant Judgment, as reimbursement for costs and expenses, which shall be delivered to Andrea Gisela Ortiz-Perea and Alejandrina Raida Cóndor-Saez, as set forth in paragraphs 246 and 249 to 252 thereof.
19. The Court shall monitor full compliance with this Judgment and the instant case shall be closed once the State implements in full the provisions herein. Within one year of the date of notification of this judgment, the State shall furnish the Court with a report on the measures taken in compliance therewith, in the terms of paragraph 253 of said judgment.

Judges Sergio García-Ramírez and Antônio Augusto Cançado Trindade informed to the Court their Separate Opinions, and Judge ad hoc Fernando Vidal-Ramírez informed to the Court his Concurring Opinion, which are attached to this Judgment.

Done in Spanish and English, the Spanish text being authentic, in San José, Costa Rica, on November 29, 2006.
Sergio García-Ramírez

President

Alirio Abreu-Burelli Antônio A. Cançado Trindade

Cecilia Medina-Quiroga Manuel E. Ventura-Robles

Fernando Vidal-Ramírez

Judge ad hoc

Pablo Saavedra-Alessandri

Secretary

So ordered,

Sergio García-Ramírez

President

Pablo Saavedra-Alessandri

Secretary

SEPARATE OPINION OF JUDGE SERGIO GARCÍA-RAMÍREZ

IN THE JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS

IN THE CASE OF LA CANTUTA, OF NOVEMBER 29, 2006

THE COURT’S CASE LAW ON SELF-AMNESTY
1. The Court has repeatedly addressed the issue posed by the so-called “self-amnesty” laws. The Court first dealt with this issue directly in the Judgment on reparations in the Case of Castillo-Páez (November 27, 1998) in connection with orders issued by the very same State at which this Judgment is directed; it was also addressed in the Judgment on reparations handed down in the Case of Loayza-Tamayo (also dated September 27, 1998); and, lastly –at a first stage of definitions and clarifications— the issue was analyzed in the widely known and cited Judgment rendered in the Case of Barrios Altos (March 14, 2001). I have expressed my views on this issue in successive separate Opinions, starting with the one I wrote for the aforementioned Case of Castillo-Páez. I will refer to my statements in such cases.
2. In recent times, the Court’s case law on this issue has been articulated in two judgments fashioned along the same lines, which, basically, uphold the Court’s findings in the aforementioned decisions: the Case of Almonacid-Arellano et al. (Judgment of September 26, 2006) and the Case of La Cantuta. No changes have been introduced as to the substance of the matter; these judgments merely incorporate clarifications or characterizations that perhaps can be attributed to the peculiarities of each case. The Court has thus established what can be referred to as the “Inter-American view on self-amnesty,” which has been expressly embraced by the judgments of several domestic courts. This has consolidated, both at the international and domestic level, a standard that, when first entertained, represented a major sign of innovation, and which has now been turned into an increasingly known, recognized and applied guarantee in the system of human rights protection.
3. To sum up, the Inter-American Court’s position on this issue upholds:
a) the full force and effect of the obligations to respect rights and ensure their exercise, under Article 1 of the American Convention on Human Rights (ACHR), notwithstanding any domestic-law obstacles that might hinder due compliance with such obligations that the State has undertaken, acting in its sovereign capacity, upon becoming a party to the Convention;
b) the resulting eradication of the impunity that such obstacles might allow in connection with particularly egregious crimes; and
c) the State’s duty to adopt, at the domestic law level, such measures as may be required to enforce said duties and root out impunity, pursuant to the provisions of Article 2 of the ACHR.
4. At some point, a question arose concerning the means through which the State should do away with any such laws that are in conflict with the American Convention on Human Rights. Abrogation? Invalidation or unenforceability by way of judicial or administrative interpretation? Nullification? It is not the Inter-American Court’s but the State’s place to answer this question, i.e. to analyze and implement the decision that will lead to the intended end, which is the elimination of any potential effect of a legal provision that is incompatible with the Convention.

5. For international jurisdiction purposes suffice to make that last comment and, in any event, explain –as even though not essential, in practice this may prove to be helpful in tackling doubts and conflicting interpretations– that, because from the very moment of their enactment they are in conflict with the international obligations of the State under the ACHR, the so-called self-amnesty laws can produce no legal effects whether at the time of being issued, at present or in the future. Basically, such laws are invalid –with no need for a special decision so holding as, in any event, any such decision would be a mere declaration of invalidity— from the very moment they conflict with the American Convention, a conflict arising right from their inception in the domestic legal system, i.e. ab initio, as already established by the Court.

6. In its ruling in the Case of La Cantuta, the Court has ratified the decision based on the interpretation of the Judgment rendered in the Case of Barrios Altos (of September 2001); such interpretation is certainly not the expression of a point of view or a recommendation but a determination –made by way of genuine interpretation—of the scope of said Judgment on the merits and reparations, an integral part of the same decision. The interpretation does not incorporate a new order to the rulings contained in the judgment, but clarifies the terms of that judgment. The judgment rendered in La Cantuta ratifies the general applicability of the position adopted by the Inter-American Court in the Case of Barrios Altos. As a matter of fact, the source of the violation lies in a general-scope provision. The Court’s decision shares the same general scope.
7. There would be no point in holding that a law is “in conflict with the Convention” in a specific case, just to leave the source of the violation standing for future cases. Far from providing a guarantee of non-repetition –a critical objective of the system of human rights protection—, this would leave the door open to a repeat violation. It would be impracticable –not to mention frustrating— to require new rulings by the Inter-American Court, covering and dealing with an indefinite number of cases of the very same nature, submitted one by one to the Court’s consideration, in order to obtain the relevant declaration that they are “in conflict with the Convention.”
8. Furthermore, the Court has also made it clear that the obligations undertaken by a State upon becoming a party to the international convention on human rights are binding upon that State as a whole. This extends to executive, legislative and judicial bodies, as well as self-governed bodies outside of the domain of the three traditional branches, which are a part of the State itself. Therefore, it is inadmissible for one of such bodies to refrain from complying with an obligation that binds the State of which it is a part, or to directly act in violation thereof, on the grounds that another body has failed to fulfill its own duties in the general system for the adoption of and compliance with international obligations. This notion calls for further consideration, exploring all sides and implications, and it obviously points to the convenience of providing, also in this case, the timely and sufficient “bridge” to link the international legal system and the domestic body of law and move past any doubt or contradiction that might arise as a result of a lack of definition on this matter.
DUE PROCESS, RES JUDICATA AND NE BIS IN IDEM
9. The Inter-American Court –as has also been the case with other international and domestic courts— has laid down certain criteria regarding res judicata and the related principle of ne bis in idem. Res judicata and the principle of ne bis in idem support legal certainty and entail guarantees that are of major importance to all citizens and, specifically, to defendants. However, res judicata involves a judgment carrying that effect: definition of a right, immutability, finality. The guarantee of ne bis in idem is based on that assumption: the prohibition of a new trial based on the same facts that were the subject-matter of a judgment that has the authority of a final judgment (not open to appeal).
10. The judgment is the outcome of the proceeding, i.e. it is the culmination of a series of actions that are fully regulated and subject to an order providing guarantees that defines the requirements for the proceeding and the conditions for the validity of the key acts that make up that proceeding, and thus prove the legitimacy of the proceeding itself as basis for the judgment. The development of the procedural system under the drive of human rights prevails in the notion of due process. In this regard, it exposes the substitution of the criticized expression that “the end justifies the means” with another rule that goes quite in the opposite direction: “the legitimacy of the means used justifies the end thus attained.”
11. Due process is, basically, the basis of the judgment. The case here –to use the analogy, if I may— is the same as with a building: a building with no foundations will collapse and will have to be rebuilt on a solid foundation. It is only in this way and through this method that the definition of rights and the imposition of duties at the end of a dispute brought before an authority with jurisdictional powers is legitimized. There is no due process –and, therefore, no valid determination of rights and duties— without the right to a fair trial provided for in Article 8 of the ACHR. And without due process, there is no real judgment, no res judicata and no room for the principle of ne bis in idem to come into operation either.
12. Currently, the international Law on human rights, as well as international criminal Law, condemn sham trials the purpose or outcome of which is other than justice and which pursue a goal that is contrary to their intended purpose: injustice, concealed between the folds of a “pseudo” proceeding guided by prejudice and aimed at allowing impunity or violations. Hence the fact that the decisions of international courts on human rights do not necessarily conform to the latest domestic-law decision analyzing the violation of a right (and authorizing or allowing the violation to continue, along with the damage inflicted upon the victim), and that is also why international criminal courts refuse to validate decisions made by domestic criminal courts that are unable or unwilling to get justice done.
13. Does this entail the decline of res judicata –a concept frequently brought into question in the realm of criminal law—and the elimination of the ne bis in idem principle, creating a general risk to legal certainty? The answer to this question, which prima facie seems to be in the affirmative, is not necessarily so. And it is not so because the ideas expressed above do not question the validity of res judicata or the prohibition against double jeopardy, provided that both find support in the applicable legal provisions and do not involve fraud or abuse but entail a guarantee for a legitimate interest and the protection of a well-established right. Therefore, there is no attack on the “sanctity” of res judicata or the finality of the first trial –viewed, accordingly, as the only possible trial–, but against the lack of a legitimate ruling –i.e. one legitimized through due process— carrying the effects of a final judgment and suitable to serve as basis for ne bis in idem.

CONFLICT OF RIGHTS
14. At some point, the Judgment rendered in the Case of La Cantuta does bring up a potential conflict between fundamental rights that are a part of due process. I am referring to the guarantee for a reasonable term, which does come up fairly often in the context of the proceeding, or in broader terms –as has been argued—of the procedure which affects the rights of private parties and must end with a judicial ruling thereon; and the guarantee of proper defense, which is a key, basic expression of the right of access to justice in its two-fold connotation: the formal one (the possibility to call for a judicial ruling, to prove the facts, present arguments and file appeals) and the material one (securing a fair judgment).
15. A court ruling on human rights must be especially careful when solving alleged or actual dilemmas, in order to secure, to the greatest extent possible, the conciliation of the rights at issue, so as to guarantee the broadest protection to the holder of such rights. However, there is no denying either that, in certain cases, it is necessary to give priority to one of such rights in order to provide, through such acknowledgement, more complete and satisfactory substantial protection to the affected person. The right to a reasonable term thus gives in to the demands of Justice.
16. The Court has noted that an excessively long term may prove to be as unreasonable –precisely due to its “excessive” nature— as an excessively short one –for the exact same reason. However, it was expressed that, ultimately, guaranteeing a fair judgment through more and better defense action is more important than having the case heard and disposed of in a brief period of time. This prevalence of material justice requires, however, that the term be reevaluated subject to adequate standards of proportionality, relevance and opportunity, all in line with whatever may be necessary to secure justice in each specific case.
THE CONTEXT OF OR CIRCUMSTANCES SURROUNDING THE VIOLATION
17. In the Judgment rendered in the case of La Cantuta –as in the rulings handed down in cases such as Goiburú, Almonacid, and Castro-Castro–, the Court introduced a consideration of “context,” allowing an analysis of the facts that constitute the violations in the specific circumstances of the case. Such circumstances bring about the facts, their characteristics, meaning and support, and contribute to the judicial solution, both as regards the evaluation of the facts and the reparations and guarantees of non-repetition.
18. An ordinary court decision might do without reflections or descriptions regarding the circumstances in which the case arose, as extended to the parties and the general status of society or a given social group, or a given set of relationships at a given place and time. However, a human rights ruling aimed at shedding some light on the violations and preventing new ones from taking place, creating the proper conditions for the better recognition and exercise of fundamental rights, cannot disengage itself from the context and be rendered in a “void.” This “historical” aspect of the case and the desired “far reach” of the relevant ruling explain and justify the “backdrop” unfolded by the Court in examining a case, as a preface to the account of the facts and as reference for applying the law.
19. The special characteristics of human rights justice also explain and justify a practice followed by the Inter-American Court both in carrying out public hearings and in the structuring of its judgments, which at times may appear overabundant or redundant. In the event of acceptance and acquiescence by the State –acceptance of the facts and acquiescence to the claims— it might be possible to do without the presentation of evidence of the facts, which have already been accepted, and accounts of such facts in a judgment in which the court is no longer required to verify the facts that constitute the violations, but merely to define their consequences (if the parties have not reached a settlement regarding such consequences or if such consequences cannot be the subject-matter of a settlement agreement by the parties).
20. However, court decisions on human rights seek to “set an example” and “be instructive.” They contribute to the “uncovering of the truth” and “political and social rectification.” Put differently, they are not limited to or satisfied by a brief decision on the specific dispute –which, by the way, has already come to an end–, but seek to instruct on the factors that breach fundamental rights, breaching practices, the suffering of victims, the requirements of a reparation that extends beyond compensation or monetary redress, the general knowledge of the violations committed. In this sense, it has a more pronounced social, historical, moral, and pedagogic nature than other expressions of public justice.
21. To sum up, this is a sui generis form of justice that takes on the political and moral values of a given society and goes over the relations between political power and human beings. This is the reason why the hearings held by the Inter-American Court and the judgments rendered by it address issues that are formally not the subject-matter of the dispute but which nevertheless affect society as a whole and have to do with the duties created by the system of human rights protection, of which the Inter-American jurisdiction is a part. Fortunately, these particularities of human rights justice have been properly understood by the parties to the proceedings, and this allows cases to proceed subject to their distinctive features, which might be unnecessary or even inadmissible in other jurisdictions.

ASSESSMENT OF THE SERIOUSNESS OF THE FACTS
22. The existence of very serious violations, in a context that is specifically injurious to the human rights of a large group of people, or of vulnerable individuals that would require special guarantees by the State, supports the Court’s ruling on reparations. It is here that the Court’s assessment of the significance and egregious nature of the violations and the nature and amount, if appropriate, of the reparations is expressed. Sometimes reference is made to the “aggravated liability” of the State when dealing with a series of violations that are particularly reprehensible. Strictly speaking, actually, there is no “aggravated liability” but facts that engage the State’s international responsibility and the seriousness of which warrants more serious consequences.
23. I have previously stated that liability –the capacity or duty to be answerable for certain facts, conduct, duties or guarantees— is a relationship between the holder of a right and the facts and conduct, viewed in the light of a given legal classification and specified legal consequences. Therefore, this is a formal concept that creates a link between the responsible party, the conduct for which such liability applies and the consequences flowing from the whole matter. Accordingly, liability in and of itself is neither aggravated nor mitigated. The serious or minor nature pertains to the facts and, therefore, influences the greater or lesser harshness of the reaction allowed by the legal system. The use of such expression may nevertheless be illustrative of the court’s disapproval of the wrongful conduct.

REPARATIONS AND ACKNOWLEDGEMENT OF LIABILITY
24. The case law of the Inter-American Court has been particularly dynamic and highly evolving on the subject of reparations. The development of Inter-American case law on this subject becomes obvious when reflecting upon the distance between a reparations scheme revolving around monetary compensation –which is most certainly indispensable and relevant—and another one which, in addition to compensation, makes provision for broad-scope measures aimed at securing moral satisfaction for the victims and preventing new violations: for instance, through constitutional reforms, the enactment of laws, the repealing of general-scope provisions, the annulment of proceedings and judgments, political or judicial reforms, and so on. All of this applies to the entire public structure and concerns society as a whole, in addition to benefiting a given person or group of persons whose legitimate interests and proven rights are sought to be enforced.
25. Among the measures of satisfaction ordered by the Court in the context of reparations, the acknowledgement of international liability by the State has already become systematic. The Court’s judgment certifies that such liability does in fact exist as a consequence of a wrongful act attributable to the State. Therefore, from a strictly legal perspective –i.e. for the formal validity of the judgment and compliance with the obligations thereby imposed— there is no need for the State to acknowledge its liability, but to fulfill the duties imposed by it. However, if made at a public act and in the presence of high-ranking authorities –the Court does not decide which such authorities should be present; the decision in this regard lies with the State, and it is to be consistent with the importance of the facts and the formal nature of the act–, such acknowledgement bears special moral relevance to the satisfaction of the victims or their next of kin and has political significance for the protection of human rights.
26. Such satisfaction may include –and often has, an encouraging occurrence that has been highlighted by the Court— some additional public expression. In this regard, there have been apologies to the victims or their next of kin and requests for their forgiveness, condemnations of the violations, offers to pass measures favorable to the victims and preventing new violations, etc. A deeper analysis is in order regarding the possibility, convenience and relevance of asking the authority to apologize to the victims or obtain their forgiveness, considering the nature of the “apology,” the moral qualities of which are indisputable but which calls for further consideration from the legal standpoint.
27. Generally, an apology for a serious violation is of specific ethical value for both the person offering it and the one at whom the apology is addressed. In these cases, the person offering an apology is not –even though in certain cases it might in fact be— the one who actually committed the offense. It is a formal, rather than a substantial, expression. It is the State who, acting through a state agent, apologizes for the wrongful conduct engaged in by another agent of the State. The latter one is the responsible party –morally, as well as legally–; conversely, the former is unrelated to the facts, being tied to the proceeding because of his or her official capacity and not because of his or her guilt, and is alien to the deep feelings, intimate pain and serious alterations that the facts have caused to the victim.

28. As far as the person to whom the apology is addressed is concerned, we should consider the meaning of the forgiveness sought and granted: does it provide absolution? Does it redeem the person offering the apology? Does it produce any legal effect at all, even though it does certainly have moral implications? Basically, what is the point of an apology for extremely serious facts (that sometimes, to be perfectly honest, seem beyond forgiveness) and what is its true validity in connection with the proceeding, the judgment, the State’s duty of justice, the claims to which the victim is entitled? Is it a part of the settlement and reconciliation? And, if so, what settling effects does it produce from the legal standpoint of the international Court’s judgment, which extends to the duties of the State?

29. In the experience of the Inter-American Court, it is increasingly more frequent to find cases in which there is a full or partial acknowledgement of liability by the State, which accepts (confesses to, as a State) the existence of the violation and the identity of the affected parties, recognizes that such violations breach specific provisions of the ACHR and even commits to certain reparations. This phenomenon marks a positive trend in the protection of human rights and the legal and moral redress to the victims. The Court has recognized the merits of this trend and the value entailed by the acknowledgement in each particular case.
30. It has been said that the acknowledgement might be intended to prevent the facts from being assessed by the Court and revealed to society, thus impairing the right to learn the truth. I am not questioning the reasons behind each specific acknowledgement. I would like to insist on the merits of the acknowledgement –which entails taking a step further beyond the denial of facts that are impossible to conceal or the defense of situations that cannot possibly be justified— and note that it does not prevent the facts from being known by the court or revealed to society. No such thing is possible if we take into consideration the well-established practice of holding public hearings at which witness accounts of the facts are heard –even if the focus is on reparations— and that of having the judgment include an account of the violations that are the source of reparations, notwithstanding the confession, acceptance or acknowledgement by the State; in other prosecutorial systems this might cause the proceeding to come to an early end by dismissal, with no account of facts that are no longer at issue and no witness testimony on events that nobody has denied.
Sergio García-Ramírez

Judge
Pablo Saavedra Alessandri

Secretary