15
merits and reparations (Nov. 24, 2006), petitioners put much more emphasis on
Peru’s domestic-law provisions than on the provisions of the American Convention on
Human Rights, which is the law applicable by this Court. In said Judgment, the Court
ordered, inter alia, that the respondent State ensured that the injured parties enjoy
the rights that had been violated, through the
"effective access to a simple, prompt and effective recourse. To this
end, it should establish, as soon as possible, an independent and impartial body
with powers to decide, in a binding and final manner, whether or not the said
persons were dismissed in a justified and regular manner from the Congress of
the Republic, and to establish the respective legal consequences, including, if
applicable, the relevant compensation based on the specific circumstances of
each individual"46 (para. 148).
55.
The fourth operative paragraph of said Judgment rendered by this Court adds,
in fine, that "the final decisions of the body established for these effects must be
adopted within one year of notification of this J
udgment." Said Judgment was rendered by the Court on November 24, 2006. Over
one year later, the case file before this Court contains no record that, as of the date
hereof, such body has actually been set up. There is thus all the more reason for the
concern expressed by the dismissed congressional employees in paragraph 7(a) of
their request for Interpretation of Judgment, which has been unduly declared
inadmissible in this decision by the Court.
56.
The aforementioned state body to be created, whether arbitral or otherwise, is
then, in my opinion, required to be a single-instance (to avoid undue delays),
independent and impartial body, obviously enough, and certainly jurisdictional in
nature. This is one further aspect that could and should have been clarified by the
Court in this Judgment on Interpretation, even more so considering that, in its
previous Judgment of Nov. 24, 2006, the Court made a vague renvoi to the domestic
law of the State of Peru for the purposes of reparation. In any event, I dare nurture
my confidence that respondent State, which has acted correctly in this Interpretation
of Judgment proceeding (without contesting the brief submitted by petitioners) will,
consistently with its highly respectable tradition of legal thought, strictly comply with
the Judgment on merits and reparations rendered by this Court in the instant Case of
the Dismissed Congressional Employees.
57.
Moreover, I will also express my concern over the stance taken by this Court –
which, in something of a paradox, seems to have recently given too much freedom to
respondent States to comply with certain forms of reparation through their preferred
means or conduct. Underlying this stance is its questionable alignment with the
untenable doctrine of the “obligations of means or conduct,” “rather than to ensure
results” in this realm of human rights protection.
58.
In the cas d'espèce, the Court found itself faced with a situation which, in its
Judgment on merits and reparations, it characterized as one of legal uncertainty;
however, all it did in this Judgment on Interpretation was perpetuate such situation of
legal uncertainty to date, in a matter of jus cogens, not only formalities-wise but also
in the substantive sense (i.e. the right to jurisdictional benefits). This is, without
question, cause for concern.
59.
Furthermore, Article 68(2) of the American Convention authorizes respondent
States to execute “that part of a judgment that stipulates compensatory damages” in
the respective countries in accordance with “domestic procedure governing the
execution of judgments against the state." The Court does not seem to take sufficient
consideration of the additional difficulties that might be faced by the beneficiaries of
46
.
Emphasis added.