4
interposed by the Commission ought to pertain to the facts already contained in that
complaint (par. 155).
13.
It is likewise preserved the role of the Commission, as guardian of the
Convention, which assists the Court in the contentieux under the Convention as
defender of the public interest. In the present case, the discrepancy between the
Commission and the petitioners did not have major practical consequences, as the
Court did not find in the briefs elements of evidence which would allow it to pronounce
on an eventual additional violation of the Convention (par. 157). Furthermore, by virtue
of a principle of procedural law, widely supported in international case-law, the Court
has the inherent power to examine, sponte sua, any additional violation of the
Convention, even if not alleged in the complaint submitted by the Commission (jura
novit curia), - as indicated in the present Judgment (par. 156) and as expressly and
rightly admitted by the Commission itself (par. 150(h)).
14.
The principle jura novit curia (which has been studied in the ambit of the most
distinct branches of Law, including international law) inspires the exercise of the judicial
function, and gives expression to the understanding that the Law is above what is
alleged by the parties, it being incumbent upon the judicial authority to identify it and
apply it to the cas d'espèce, it being entirely free to that end. The judicial authority,
thus, is not limited by what is alleged by the parties, nor is there margin for the non
liquet. The judicial authority ought to say what the Law is (jurisdictio, jus dicere) and
give application to it, and to that effect - in compliance with its duty - it is entirely free.
15.
In fact, the consideration of the principle of procedural law jura novit curia
comes to stress the differentiated treatment dispensed to the factual and juridical
elements, which has guided the criterion adopted by the Inter-American Court, in the
present Judgment, on the question at issue. By virtue of that principle jura novit curia,
the judicial authority, although circumscribed in its decision to the facts and evidences
submitted in the judicial process, has, distinctly, as to the law, the facultad and the duty
to go further than the allegations by the parties. It thus finds itself entitled to qualify
autonomously the factual situation at issue, and to search, in the applicable legal order,
for the pertinent provisions, even if they have not been invoked by the parties; that is,
it is entitled to search freely for the legal norms to apply.
16.
In any way, it is of importance the step forward taken by the Court in the
present Judgment, leaning, as to the position of the individual petitioners, in favour of
the thesis of substantive law. The Courte correctly sustains that the consideration which
ought to prevail is that of the individuals being subjects of all the rights protected by the
Convention, as the true substantive complaining party, and as subjects of the
International Law of Human Rights. The Court has moved consciously in the right
direction, in the exercise of a faculty which is inherent to it, and taking both the
American Convention and its interna corporis as living instruments, which require an
evolutive interpretation (as indicated in its jurisprudence constante)6, so as to fulfil the
changing needs of protection of the human being.
6
.
Cf., in this sense, the obiter dicta in: Inter-American Court of Human Rights (IACtHR), Advisory
Opinion OC-10/89, on the Interpretation of the American Declaration on the Rights and Duties of Man in the
Framework of Article 64 of the American Convention on Human Rights, of 14.07.1989, pars. 37-38; IACtHR,
Advisory Opinion OC-16/99, on the Right to Information on Consular Assistance in the Framework of the
Guarantees of the Due Process of Law, of 01.10.1999, pars. 114-115, and Concurring Opinion of Judge A.A.
Cançado Trindade, pars. 9-11; IACtHR, case of the "Street Children" (Villagrán Morales and Others versus
Guatemala), Judgment (on the merits) of 19.11.1999, pars. 193-194; IACtHR, case Cantoral Benavides versus
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