SEPARATE OPINION OF
JUDGE A. A. CANÇADO TRINDADE
1.
I subscribe to the decision of the Court to reject the preliminary objection raised by
the respondent Government, and to continue to hear the instant case on its merits. I feel
obliged to add this Separate Opinion in order to leave on record the basis of my reasoning
and my position on the central point of the preliminary objection presented by the
Government of Peru, that is, the objection raised before the Court of non-exhaustion of
domestic remedies in the circumstances of the present Castillo Páez Case.
2.
May I, first of all, reiterate my understanding, expressed in my Dissenting Opinion in
the Resolution of the Court of 18 May 1995 in the case of Genie Lacayo concerning
Nicaragua, to the extent that, in the context of the international protection of human rights,
the preliminary objection of non-exhaustion of domestic remedies is one of pure
admissibility (and not of competence), and, as such, in the current system of the American
Convention on Human Rights, should be resolved in a well-founded and definitive manner by
the Inter-American Commission on Human Rights.
3.
Contrary to what may be inferred, the extensive interpretation of the Court’s own
faculties, which it advanced in the cases concerning Honduras, 1 so as to comprise also
issues related to preliminary objections of admissibility (based on a question of fact), does
not always necessarily contribute to a more effective protection of the guaranteed human
rights. In reality, such a conception leads to the undesirable reopening and reexamination of
an objection of pure admissibility, which obstruct the procedure and thereby perpetuate a
procedural imbalance which favors the respondent party. This is not a question of
“restricting” the powers of the Court in particular, but rather of strengthening the system of
protection as a whole, in its current stage of historical evolution, remedying such imbalance,
and thus contributing to the full realization of the object and purpose of the American
Convention on Human Rights.
4.
The preliminary objections, if and when interposed, should be, by their very
definition, in limine litis, at the stage of admissibility of the petition and before any and all
consideration of the merits. This applies even more forcefully when dealing with a
preliminary objection of pure admissibility, as is that of non-exhaustion of domestic
remedies in the present context of protection. If this objection is not raised in limine litis, it
is tacitly waived (as the Court has already admitted, for example, in the Gangaram Panday
case, concerning Suriname). 2
5.
Therefore, the respondent Government cannot subsequently raise that preliminary
objection before the Court, as it failed to raise it, in a timely manner, for the decision of the
Commission. If, as in the present case, the respondent Government waived that objection
1
Judgments of 1987 on Preliminary Objections, in the cases of Velásquez Rodríguez, paragraph
29; Godínez Cruz, paragraph 32; and Fairén Garbi and Solís Corrales, paragraph 34.
2
Judgment of 1991 on Preliminary Objections, Gangaram Panday case, paragraphs 39-40; see
also the Judgment on Preliminary Objections, Neira Alegría et al. case concerning Peru, of the same
year, paragraphs 30-31; and the judgments cited supra (Note 1) in the three cases concerning
Honduras, paragraphs 88-90 (Velásquez Rodríguez), 90-92 (Godínez Cruz), and 87-89 (Fairén Garbi
and Solís Corrales); and earlier, Decision of the Court of 1981 in the matter of Viviana Gallardo et al.,
paragraph 26.