5
17.
This is a significant step forward taken by the Court, since the adoption of its
present Regulations. In conformity likewise with the mens legis of the current
Regulations, in the sense of granting the greatest possible participation, in an
autonomous way, to the alleged victims, and their legal representatives duly accredited,
in the procedure before the Court, is the general Resolution on provisional measures of
protection, issued by the Court on 29 August 2001. By means of that Resolution, the
Court, in its wisdom, decided that "it will receive and will take cognizance of, in an
autonomous way, the submissions, arguments and evidences of the beneficiaries of the
provisional measures adopted by this latter in the cases in which the complaint has
been submitted to it, without the Commission being dispensed, in the framework of its
conventional obligations, from informing the Court, whenever it so requests" (resolutory
point n. 1).
18.
This being so, if the alleged victims and their legal representatives can present
directly to the Court a request for provisional measures of protection in cases which are
pending before the Tribunal, with even more force it can be sustained that they may, in
the proceedings of contentious cases before the Court, refer to the alleged violation of
rights additional to the ones already alleged in the complaint interposed by the
Commission. Here, once again, the petitioners mark presence as titulaires of the rights
set forth in the American Convention.
19.
There will always subsist a difference of approach between the supporters of this
thesis - among whom I stand7 - and the followers of the thesis of procedural law. I
think, however, that, as from the moment when one affirms, in an unequivocal way, the
juridico-international subjectivity of the human person, one ought to assume the legal
consequences ensuing therefrom. The petitioners themselves are those who, better
than anyone else, can assess which rights have presumably been violated. To pretend
to impose them a limit to this faculty would go against the right of access to justice
under the American Convention.
20.
The criterion adopted in this respect by the Court in the present Judgment,
which will serve as guide for its procedure from now onwards, contributes, thus, to the
improvement of the due process of law at international level, under the American
Convention. Not always the complaint originally presented by the petitioners before the
Commission (Article 44 of the Convention) is necessarily the same as the complaint
subsequently interposed by the Commission before the Court (Article 61(1) of the
Convention). If it is required from the States, in conformity with the Convention (Article
25), the respect for the right of access to justice, with the preservation of the faculty of
the individual complainants to substantiate their legal actions before national tribunals,
how to pretend to deny them this same faculty in their arguments before an
international tribunal like the Inter-American Court?
Peru, Judgment (on the merits) of 18.08.2000, pars. 99 and 102-103; IACtHR, case Bámaca Velásquez versus
Guatemala, Judgment (on the merits) of 25.11.2000, Individual Opinion of Judge A.A. Cançado Trindade, pars.
34-38; IACtHR, case of the Community Mayagna (Sumo) Awas Tingni versus Nicaragua, Judgment (on the
merits and reparations) of 31.08.2001, pars. 148-149; IACtHR, case Bámaca Velásquez versus Guatemala,
Judgment (on reparations) of 22.02.2002, Individual Opinion of Judge A.A. Cançado Trindade, par. 3.
7
.
Cf. Inter-American Court of Human Rights, Informe: Bases para un Proyecto de Protocolo a la
Convención Americana sobre Derechos Humanos, para Fortalecer Su Mecanismo de Protección (Rapporteur:
A.A. Cançado Trindade), San José of Costa Rica, IACtHR, 2001, pp. 1-64, esp. pp. 59, 23, 33, 40-44, 50-55
and 64; A.A. Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Internacionales de Derechos
Humanos, Bilbao, University of Deusto, 2001, pp. 9-104.
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