JOINT DISSENTING OPINION OF JUDGES
MANUEL E. VENTURA ROBLES AND EDUARDO FERRER MAC-GREGOR POISOT
CASE OF BREWER CARÍAS v. VENEZUELA
JUDGMENT OF MAY 26, 2014
(Preliminary objections)
1.
This dissenting opinion in the case of Brewer Carías v. Venezuela is issued for the
reasons to be described below, based on which the authors are in disagreement with the
operative paragraphs of the Judgment adopted by a majority of four votes (hereinafter “the
Judgment” or “the majority opinion”), in which the Inter-American Court of Human Rights
(hereinafter “the Court” or “the Inter-American Court”) admits the preliminary objection
filed by the State concerning the failure to exhaust domestic remedies and, thus, orders
that the file of this case be archived.
2.
We observe with concern that, for the first time in its history, the Court does not
proceed to examine the merits of a litigation because it finds admissible a preliminary
objection of failure to exhaust domestic remedies, 1 related in this case to Articles 8 and 25
of the American Convention on Human Rights (hereinafter “the American Convention,” “the
Pact of San José de Costa Rica” or “the ACHR”). In addition, as analyzed below, the
Judgment includes some considerations that, in our opinion, are not only contrary to the
Inter-American Court’s case law, but also represent a dangerous precedent for the interAmerican system for the protection of human rights as a whole, to the detriment of the right
of access to justice, and the individual. 2
3.
The special interest that this case has aroused in civil society should also be
stressed, since 33 amicus curiae briefs have been received from renowned international
jurists, as well as from legal and professional institutions and non-governmental
organizations and associations of the Americas and Europe, concerning different issues
relating to the litigation, 3 such as the rule of law, judicial guarantees, due process of law,
judicial independence, the provisional nature of the judges, and the practice of law. All
1
On only three previous occasions in the more than 26 years of its contentious jurisdiction, the InterAmerican Court has not examined the merits of the dispute submitted to it for different reasons: the first, owing to
the expiry of the time frame for the presentation of the application by the Inter-American Commission (Case of
Cayara v. Peru. Preliminary objections. Judgment of February 3, 1993. Series C No. 14); the second, due to the
discontinuance of the action, decided by the Inter-American Commission on Human Rights (Case of Maqueda v.
Argentina. Preliminary objections. Order of January 17, 1995. Series C No. 18), and third, owing to the lack of
competence ratione temporis of the Inter-American Court (Case of Alfonso Martín del Campo Dodd v. Mexico.
Preliminary objections. Judgment of September 3, 2004. Series C No. 113).
2
It should not be forgotten that the international system must be understood as a whole, an essential
principle indicated by Article 29 of the Pact of San José, which imposes a framework of protection that always gives
preference to the most favorable interpretation, which constitutes the “cornerstone of the protection of the whole
inter-American system.” Cf. Case of Radilla Pacheco v. Mexico. Preliminary objections, merits, reparations and
costs. Judgment of November 23, 2009. Series C No. 209, para. 24.
3
The names of the persons, institutions and associations that submitted amici curiae, appear in para. 9 of
the Judgment.
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