32.
The Court will now proceed to examine the said three preliminary objections
filed by the State.
A. “Lack of competence ratione temporis of the Court”
Arguments of the parties
33.
The State argued that “the facts that gave rise to criminal case No. C144/80
took place in 1980” and, in addition, the “facts that Mr. Grande argues to found his
claim for compensation also predate the entry into force of the Convention for the
Argentine Republic”; namely, September 5, 1984; “therefore, they are excluded from
the Court’s consideration.” It also noted that, when accepting the Court’s jurisdiction,
“it placed on record that the obligations assumed would only take effect with regard to
facts that occurred following the ratification of the said instrument.” In support of its
argument, the State cited Article 28 of the Vienna Convention on the Law of Treaties
and indicated that the Court had ruled in keeping with this article in the case of Cantos
v. Argentina, taking into consideration the principle of the non-retroactivity of
international law enshrined in the said convention and in international law in general.
34.
For his part, the representative indicated that, “while it is true that the date on
which the Argentine State accepted the jurisdiction of the Court was September 5,
1984, it is also true that the reported facts […] date back to July 28, 1980, and
persisted until May 3, 1994.” In this regard, he argued that the State’s position sought
to set aside the practice of the human rights protection organs, the jurisprudence of
the European Court of Human Rights, and the provisions of the American Declaration.
The representative highlighted, in particular, that “the facts that the Commission
presents as factual and legal conclusions are related to the criminal proceedings” after
September 5, 1984, “and also to the remedy filed by Jorge Fernando Grande under
administrative law, which lasted until [May 3,] 1994; in other words, almost 10 years
after the Argentine State’s acceptance of the compulsory jurisdiction of the InterAmerican Court.” Lastly, the representative indicated that, regarding “the facts that
took place before the Court had jurisdiction, there is a causal relationship with the
facts that occurred afterwards, so that the Court should examine all the facts.”
35.
The Commission observed that “the violations it had asked the Court to declare
in its application took place after September 5, 1984. Indeed, a significant part of the
criminal proceeding to which Jorge Grande was subject took place between September
5, 1984, and January 24, 1989. However, the claim for damages, the result of which
supports the [Commission’s] legal conclusions concerning the lack of judicial
protection, was filed and heard in its entirety following the acceptance of the Court’s
jurisdiction.” The Commission stressed that, when “describing the factual framework of
the application,” it had referred “to the background and all the criminal proceedings
against Mr. Grande, insofar as this contextual information was relevant to the Court’s
analysis of the facts that fall within its temporal competence.” Based on the above, the
Commission asked the Court to reject this preliminary objection.
Considerations of the Court
36.
In order to determine if the Court is competent to hear a case or any aspect
thereof, according to Article 62(1) of the American Convention,5 the Court must
5
Article 62(1) of the Convention establishes that “[a] State Party may, upon depositing its
instrument of ratification or adherence to this Convention, or at any subsequent time, declare that it
8