4
it for the domestic jurisdiction and violates its essential subsidiary and
complimentary nature. Thus, the conventional guarantees rest on the “principle of
subsidiarity” mentioned prior, recognized expressly in Articles 46(1)(a) of the
American Convention itself, which enshrines as a requisite for the Inter-American
bodies, “that the remedies under domestic law have been pursued and exhausted
in accordance with generally recognized principles of international law”; a rule
which compliments provision 61(2) of the same Pact, by explicitly providing as a
condition for action, that “[i]n order for the Court to hear a case, it is necessary
that the procedures set forth in Articles 48 and 50 [be] completed.” (referring to
the procedure before the Inter-American Commission on Human Rights).
10.
The I/A Court of H.R. does not have jurisdiction to become a “new and last
resort” in order to resolve the original arguments of the parties from a domestic
proceeding. This is clear to the Inter-American Court as it cannot be otherwise. The
lucid reflections of an outstanding Inter-American judge are relevant regarding this
issue:8
The Inter-American Court, which is responsible for performing a “control of
compliance” based on the confrontation of the facts at stake and the
provisions of the American Convention, cannot and does not intent –indeed, it
never did- to become a new and last resort to hear a controversy originated
in the domestic jurisdiction. The idea that the Inter-American Court
constitutes a third or fourth instance, and eventually a jurisdiction of last
resort, arises from a popular belief that is rooted in reasonable grounds;
however, this idea has absolutely no connection with the jurisdiction of the
Court, the legal conflict brought before it, the parties to the corresponding
proceedings and the nature of international proceedings for the protection of
human rights. (underlining added)
11.
Therefore, it is deemed that the Inter-American Court has jurisdiction, in
certain cases, to review the actions of domestic judges, including the proper
exercise of the “control of compliance,” provided that the analysis is derived from
an examination carried out regarding the compatibility of domestic actions in light
of the American Convention on Human Rights, of its additional Protocols, and of its
conventional jurisprudence; without this turning the Inter-American Court into a
“court of appeals” or court of “fourth instance,” because its actions are limited to
the analysis of certain violations of the international commitments made by the
respondent State in each particular case, and not of each and every one of the
actions of domestic judicial bodies, which obviously in this latter case would mean
to replace the domestic jurisdiction, violating the very essence of the reinforcing
and complementary nature of the international tribunals.
12.
On the contrary, the I/A Court of H.R. has jurisdiction to hear “matters
related to the compliance of the commitments made by State parties”;9 being that
the principal objective of the Inter-American Court is “the application and
interpretation of the American Convention on Human Rights,”10 from where it
derives its jurisdiction to also analyze the due exercise of the “control of
compliance” by the domestic judge when there are violations of the Pact of San
Jose, an analysis that conventional judge shall carry out, necessarily, upon deciding
8
Para. 3 of the concurring opinion of Judge Sergio García Ramírez, for the judgment issued in
the Case of Vargas Areco v. Paraguay. Merits, Reparaciones y Costas, of September 26, 2006. Series C
No. 155.
9
Article 33 of the American Convention on Human Rights.
10
Article 1 of the Statute of the Inter-American Court of Human Rights.
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