21.
The Commission indicated that the State’s allegation did not constitute a preliminary
objection because it did not refer to issues of jurisdiction, or to the admissibility requirements
established in the Convention. It also asserted that the report issued under Article 50 of the
Convention constituted a preliminary report of a confidential nature, which could lead to two
actions: submission of the case to the Court or publication of the report. However, once one
of those options had been chosen, the report relinquished its initial nature. The Commission
indicated that, after submitting the matter to the Court, it had published the final report (on
Admissibility and Merits) on its website according to its consistent practice; an action that
did not violate the Convention. Furthermore, the Commission observed that the State’s
indication that the Admissibility and Merits Report had been published before the case was
submitted to the Court related to an electronic link with access as of September 10, 2015,
which was after the submission of the case. Lastly, the Commission indicated that the State
had failed to present any evidence of this supposedly undue publication.
22.
The representatives indicated that the State had not presented any argument based
on person, matter, time or place that could affect the Court’s competence, and therefore
asked the Court to reject this objection. In addition, they indicated that the State was
attempting to present aspects of the procedure before the Commission as a preliminary
objection. Lastly, the representatives argued that the publication of the Merits Report did not
constitute a grave error, and it was not prohibited from publishing it.
A.2. Considerations of the Court
23.
This Court has consistently interpreted that Articles 50 and 51 of the Convention allude
to two different reports; the first identified as a preliminary report and the second as the final
report. Each report has a distinct nature, because they correspond to different stages. 20
24.
The preliminary report responds to the first stage of the procedure and is established
in Article 50 of the Convention, which stipulates that, “if a settlement is not reached, the
Commission shall draw up a report setting forth the facts and stating its conclusions”; the
report is then forwarded to the State concerned. This document is of a preliminary nature,
so that the report transmitted to the State is confidential in nature to allow the latter to adopt
the Commission’s suggestions and recommendations and thus settle the dispute. The
preliminary and confidential nature of the document means that the State is not authorized
to publish it. Accordingly, based on the principles of equality and procedural balance between
the parties, it is reasonable to consider that the Commission, also, is unable, either practically
or legally, to publish this preliminary report.21
25.
When three months have elapsed, if the matter has not been resolved by the State to
which the preliminary report was sent by complying with the recommendations made therein,
the Commission is authorized, within that period, to decide whether to submit the case to
the Court or to publish the report in accordance with Article 51. 22
26.
Therefore, the report established in Article 50 may be published, provided this occurs
after the case has been submitted to the Court. This is because, at that moment of the
procedure, the State is aware of its contents and has had the opportunity to comply with the
recommendations. Therefore, it cannot be considered that the principle of the procedural
balance between the parties has been violated. This has been the Commission’s consistent
practice for many years, in particular since the 2009 amendment of its Rules of Procedure.
Cf. Certain attributes of the Inter-American Commission on Human Rights (Arts. 41, 42, 44, 46, 47, 50 and 51 of
the American Convention on Human Rights), Advisory Opinion OC-13/93 of July 16, 1993, para. 53.
20
21
Cf. Certain attributes of the Inter-American Commission on Human Rights, para. 48.
22
Cf. Certain attributes of the Inter-American Commission on Human Rights, para. 50.
10