DISSENTING OPINION OF JUDGE A.A. CANÇADO TRINDADE 1. I regret not to be able to join the majority of the Court as to the criterion it adopted in paragraphs 60 and 62 and the decision it took in resolutory point n. 5 of the present Judgment on reparations. In my Separate Opinion in the previous Judgment (of 18 January 1995) in the same case El Amparo, I sustained that the Court should, at that stage of the procedure (recognition of responsibility made by the Republic of Venezuela), have expressly reserved the faculty also of examining and deciding on the original request of the InterAmerican Commission on Human Rights as to the incompatibility or otherwise of Article 54(2) and (3) in force of the Code of Military Justice of Venezuela with the object and purpose of the American Convention on Human Rights. As, in the present Judgment, the Court decided to abstain from pronouncing on the matter, I feel obliged to present my Dissenting Opinion. 2. The remark by the Court that the provisions of Article 54(2) and (3) of the Code of Military Justice 1 “have not been applied in the present case” (paragraph 58), does not deprive it of its competence to proceed to the determination of the incompatibility or otherwise of those legal provisions 2 with the American Convention on Human Rights. In my understanding, the very existence of a legal provision may per se create a situation which directly affects the rights protected by the American Convention. A law can certainly violate those rights by virtue of its own existence, and, in the absence of a measure of application or execution, by the real threat to the person(s), represented by the situation created by such law. 3. It does not seem necessary to me to wait for the occurrence of a (material or moral) damage for a law to be impugned; it may be so without this amounting to an examination or determination in abstracto of its incompatibility with the Convention. If it were necessary to wait for the effective application of a law causing a damage, the duty of prevention could hardly be sustained. A law can, by its own existence and in the absence of measures of execution, affect the rights protected to the extent that, for example, by its being in force it deprives the victims or their relatives of an effective remedy before the competent, independent and impartial national judges or tribunals, as well as of the full judicial guarantees (in the terms of Articles 25 and 8 of the American Convention). 4. In abstaining from pronouncing on the matter, the Court failed to proceed, as it was incumbent upon it, to the examination or determination of the incompatibility of Article 54(2) and (3) in force of the Code of Military Justice of Venezuela with the general duties 1 Article 54 of the Code of Military Justice confers upon the President of the Republic, an "official of military justice," the attributions of ordering "not to hold a military trial in certain cases, when he considers so convenient" to national interests (para. 2), and of ordering "the discontinuance of military trials, when he deems so convenient, at any stage of the process" (para. 3). 2 And military regulations and instructions.