SEPARATE OPINION OF JUDGE A. A. CANÇADO TRINDADE
1.
In voting in favor of the adoption of the this Judgment of the Inter-American
Court of Human Rights in the case of Gutierrez Soler versus Colombia, with which I
basically agree, I feel obliged to include in this Separate Opinion, albeit briefly, my
personal reflections on four fundamental issues raised in the instant case, which, in
my view, should not go unnoticed. I am referring, in particular, to the following
issues: a) time, the life project and the vulnerability of human existence; b) time,
the vulnerability of human existence and the after-life; c) the duty of remembrance
and the need to remember; and d) the ripening of time, awareness and the quest
for forgiveness.
I.
Time, Life project and the Vulnerability of Human Existence
2.
Following the precedent developments regarding the concept of the right to
a life “project” in the cases of Loayza Tamayo versus Peru (reparations, 1998),
“Street Children” versus Guatemala (merits, 1999, and reparations, 2001) and
Cantoral
Benavides
versus
Peru
(reparations,
2001),
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the Court had the opportunity to further develop its construction on this concept.
However, the lack of consensus among its members as to which direction to take
hindered further progress in this regard. Still, I believe that the Court, even without
unanimity, should have taken a step forward in its precedents construction,
especially in light of the positive step taken by the respondent Government to
accept its international liability in the cas d'espèce and to apologize to the victim
and to the victim’s next of kin. The Court having elected not to develop its own
precedent construction, I feel obliged to put on record my personal reflections on
this matter in this Separate Opinion in order to support my position.
3.
We all live in time, which eventually consumes us all. Precisely because of
this self-perception we have of ourselves as existing in time, each one of us seeks
to envisage a life project. The term “project” implies in itself a temporal dimension.
The concept of life project has therefore an essentially existential value, grounded
in the idea of complete personal achievement. In other words, within the
framework of a transient life, people have the right to make the options they feel
are best, of their own free will, in order to achieve their ideals. Therefore,
endeavors to achieve a life project appear to have great existential value, and the
potential to give meaning to each person’s life.
4.
When this quest is suddenly torn apart by external factors caused by man
(such as violence, injustice, discrimination), which unfairly and arbitrarily alter and
destroy an individual’s life project, it is especially serious, —and the Law cannot
remain indifferent to this. Life —at least the one we know— is the only one we have
and has a time limit, and the destruction of the life project almost always implies a
truly irreparable damage or sometimes reparable only with great difficulty.
.
In other cases, the right to a project of life has been invoked by the plaintiffs before this Court
at an individual level (e.g. case of Myrna Mack Chang versus Guatemala, 2003, and case of the Gómez
Paquiyauri Brothers versus Peru, 2004), at a family level (e.g. case of Molina Theissen versus
Guatemala, 2004), and at a collective level (e.g. case of Plan de Sánchez Massacre versus Guatemala,
reparations, 2004).
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