Conclusion
Finally, in this case, the said admissibility report and the Judgment that partially
validates it affect the principles of subsidiarity and complementarity that imbue the
inter-American system of human rights with the legal certainty and security with which
its treaty-based provisions must be applied and interpreted, as well as the procedural
balance and equality that should reign in the processing of “petitions or communications
lodged” before the Commission and submitted to the Court and, therefore, placed and
left the State in a situation of defenselessness.
Evidently, this opinion is issued, as in the case of other issued by the undersigned, 47
taking into consideration one of the specific imperatives faced by a tribunal such as the
Court, which is that it must act with full awareness that, as an autonomous and
independent entity, there is no higher authority controlling it, which means that, in
honor of the high function assigned to it, it must strictly respect the limits of this
function, and remain and evolve within the sphere appropriate to a jurisdictional entity.
Undoubtedly, acting in this way is the best contribution the Court can make to enhancing
the inter-American institutional framework for human rights, a requirement sine qua non
for the safeguard of these rights.
This opinion is issued from this perspective, bearing in mind that the Court is called on to
interpret and apply the Convention, mindful that changing or amending it is the
competence of its States Parties, 48 so that, in the performance of its function, the Court
must seek justice, not in abstract, but under the said Convention and not outside the
Convention or in contradiction to it, or trying, directly or indirectly, to amend it.
It is based on the above that the Court’s observations should be understood concerning
“the tolerance of ‘evident violations of the procedural rules established in the
Convention, would entail the loss of the essential authority and credibility of the organs
responsible for administering the system of human rights protection,” 49 and this is
precisely why it was necessary, in this case, to admit totally the objection of lack of prior
exhaustion of domestic remedies submitted by the State.
Eduardo Vio Grossi
Judge
Pablo Saavedra Alessandri
Secretary
47
Complaint submitted to the Court on August 17, 2011, and Dissenting Opinion, Judgment on merits,
reparations and costs, Case of Barbani Duarte et al. v. Uruguay, of October 13, 2011.
48
Art. 76 of the Convention: “ 1. Proposals to amend this Convention may be submitted to the General
Assembly for the action it deems appropriate by any State Party directly, and by the Commission or the Court
through the Secretary General.
2. Amendments shall enter into force for the States ratifying them on the date when two-thirds of the States
Parties to this Convention have deposited their respective instruments of ratification. With respect to the other
States Parties, the amendments shall enter into force on the dates on which they deposit their respective
instruments of ratification.
49
Para. 43.
10