2
courts that hear private law disputes often are – by the presentation of the facts as
formulated and/or accepted by the parties. In this context, the principles of material
truth and effective protection of subjective rights prevail as a means of true
compliance with objective law; and this is indispensable in the case of fundamental
rights, since strict respect for them is of interest not only to those who hold such
rights, but also to society – the international community – as a whole.
6.
Neither is the Court bound by the legal classification of the facts formulated
and/or accepted by the parties, a classification that implies analyzing them in the
light of the law applicable to the case, which comprises the provisions of the
American Convention. In other words, it is for the Court, and only the Court, to
classify the facts as violating specific provisions of the Convention and, consequently,
the rights that they recognize and protect. It is not enough that the respective
acquiescence recognizes the facts, for the Court to classify them in the same way
that the petitioner does and which the defendant admits or does not reject. The
technical application of law, with everything that this implies, is a natural function of
the Court – the expression of its jurisdictional powers – and the parties may not
exclude, condition or manipulate it.
7.
Therefore, it is for the Court to examine certain facts that have been admitted
by the party that acquiesces – or rather, under another hypothesis, that have been
proven in the regular course of a contentious proceeding – and decide whether they
entail the violation of a specific right established in an article of the Convention. This
classification, inherent to the work of the Court, is outside the dispositive faculties –
unilateral or bilateral – of the parties who brought the dispute before the Court, but
do not substitute it. In other words, the function of “stating the law” (decir el
Derecho) – establishing the relationship that exists between the fact examined and
the applicable norm – corresponds to the jurisdictional organ alone, that is, to the
Inter-American Court.
8.
The Inter-American Commission indicated that Article 13 may have been
violated in the instant case, because the removal of the case from the jurisdiction of
the Peruvian authorities (as regards the investigation, prosecution, trial and
punishment) impeded the truth from being known. The Court has not rejected the
possibility of invoking the right to the truth under Article 13 of the American
Convention, but has considered that, in the circumstances of an actionable case –
similar to others previously filed before the Court – the right to the truth is subsumed
in the right of the victim and/or his next of kin to obtain clarification of the facts that
violated human rights and the declaration of the corresponding responsibilities from
the competent organs of the State, in accordance with Articles 8 and 25 of the
Convention. Accordingly, no explicit statement has been made about Article 13,
invoked by the Commission, but rather about Articles 8 and 25, which are the articles
applicable to the facts submitted to the Court’s consideration, in accordance with the
pertinent evaluation.
9.
As regards Amnesty Laws No. 26.479 and No. 26.492, referred to in this case,
I believe it is relevant to refer to what I have stated at some length in my concurring
opinion to the judgment on reparations delivered by the Inter-American Court in the
Castillo Páez (ICourtHR, Castillo Páez case.
Reparations (Article 63(1) of the
American Convention on Human Rights). Judgment of November 27, 1998. Series C
No. 43, pp. 60 and ff.). In that concurring opinion, I expanded on the considerations
that appear in the judgment itself, which clearly indicate the Court’s opinion about
these laws, an opinion that is fully applicable in the instant case.