CONCURRING OPINION OF JUDGE SERGIO GARCÍA RAMÍREZ
IN RELATION TO THE JUDGMENT OF THE
INTER-AMERICAN COURT OF HUMAN RIGHTS
IN THE CASE OF ACEVEDO BUENDÍA ET AL.
(“DISCHARGED AND RETIRED EMPLOYEES OF THE COMPTROLLER”)
OF JULY 1, 2009
I.
Loss of opportunity to take steps in the proceeding
1. According to the rules of the Inter-American procedure for the protection of
human rights- norms of a compulsory nature- the State has procedural
opportunities, clearly established, to put forward its defense. In some cases, the
State has failed to raise these defenses before the Commission and has only
raised them, by means of preliminary objections, when the suit is brought before
the Court.
2. In general, this Tribunal considered such failures under the concept of “tacit”
waiver of the right to raise a defense, which entails the inability of filing them
during the conduct of the proceeding. The consideration made by the Court has
given rise to certain questionings: some of the States point out that no such
“waiver” does not exist. The waiver itself entails- as has been said- a State's
decision in that regard.
3. In this respect, it seems adequate to recall that procedural acts are subject to
certain rules, on whose observance their admissibility and efficacy depend, with
all that it entails for the institution, modification, detention or the conclusion of a
trial. Among such rules, it could be mentioned those corresponding to the timing
(opportunity) to take steps. Actually, the Court does not need to unnecessarily
consider that there was a “tacit waiver” of the right to defense- a consideration
that only means a nominal determination of the failure, but that it does not alter
its nature and consequences-, attributing, in this way, to the State’s failure a
meaning and purpose leading to doubts or obligations. What it is important is
that the State failed to take a certain step at the opportunity provided for that
purpose and once this opportunity passed, the State lost the possibility to do it.
This is what happens in the well established conduct of any ordinary proceeding.
4. I have previously asserted that the Court may modify the expressions it normally
uses in this regard, modification that has effectively occurred in many recent
judgments, as the one of the instant case. In such judgments, reference is no
longer made to the "tacit waiver" but to the loss or exhaustion of the procedural
opportunity to present a defense. Of course, the Court could go beyond in the
consideration of this issue and explore the true nature of the topic, which would
be recognized as a situation of preclusion or insatisfaction of the procedural
burden, with the consequences inherent to these well-known phenomena for the
discipline of the proceeding. There is no point in turning the attention towards the
technique and the doctrine of the proceeding, embodied in the respective general
theory, when we are precisely dealing with a procedural issue, regardless of
whether such issue is put forward in an international proceeding.
5. The determination of these effects for the failure of defense- loss of opportunity
to file it, once the opportunity to do it has passed- does not mean that the InterAmerican Court is able to reconsider decisions adopted in the proceeding before