SEPARATE OPINION OF JUDGE A.A. CANÇADO TRINDADE
1.
I have voted in favor of the adoption of this judgment of the Inter-American
Court of Human Rights in the case of the Dismissed Congressional Employees, with
regard to the State of Peru. In this brief separate opinion, I wish to add some
clarifications of a conceptual nature. Although I am not satisfied with the decision in
this case, at least the Court’s judgment reveals the importance of the right to an
effective recourse in order to avoid the occurrence of a situation such as that of the
employees dismissed from the Peruvian Congress in the cas d'espèce. It is no
coincidence that, in this regard, in Castillo Páez v. Peru (judgment on merits of
November 3, 1997), when first determining the content of the right to an effective
domestic recourse (under Article 25 of the American Convention on Human Rights),
the Court added that the right to an effective domestic recourse “is one of the
fundamental pillars not only of the American Convention, but of the very rule of law
in a democratic society in the terms of the Convention” (para. 82).
2.
As I have been maintaining for many years, effective recourses under
domestic law, to which specific provisions of human rights treaties refer expressly,
are part of the international protection of human rights.1 In this regard, it should not
be forgotten, as the Court indicates in this judgment, that:
“When a State has ratified an international treaty such as the American Convention, the
judges are also subject to it; this obliges them to ensure that the effet util of the
Convention is not reduced or annulled by the application of laws contrary to its
provisions, object and purpose. In other words, the organs of the Judiciary should
exercise not only a control of constitutionality, but also of ‘conventionality’ ex officio
between domestic norms and the American Convention; evidently within the framework
of their respective jurisdictions and the corresponding procedural regulations. (...).” 2
3.
In other words, the organs of the Judiciary of each State Party to the
American Convention should have an in-depth knowledge of and duly apply not only
constitutional law but also international human rights law; should exercise ex officio
the control of compliance with the constitution (constitutionality) and with
international treaties (conventionality), considered together, since the international
and national legal systems are in constant interaction in the domain of the protection
of the individual. The case of the Dismissed Congressional Employees poses the
question for future studies on the issue of access to justice of whether a lack of
clarity with regard to domestic recourses as a whole can also lead to a denial of
justice.
4.
I would like to recall here that, in my separate opinion in the recent case of
Goiburú et al. v. Paraguay (judgment of September 22, 2006), I indicated that, in
that case, the Court had taken a step forward in the direction I had been advocating
within the Court for some time,3 by recognizing that this peremptory right also
1
.
A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Remedies in
International Law, Cambridge University Press, 1983, pp. 279-287; A.A. Cançado Trindade, O
Esgotamento de Recursos Internos no Direito Internacional, 2a. ed., Brasília, Editora Universidade de
Brasília, 1997, pp. 243 and 265.
2
3
.
Paragraph 128.
.
Indeed, in my separate opinion in Myrna Mack Chang v. Guatemala (Judgment of November 25,
2003), I maintained that the right to law is necessary; in other words, the right to a legal system that
effectively safeguards fundamental human rights (paras. 9 to 55).