CONCURRING OPINION OF
JUDGE A.A. CANÇADO TRINDADE
1.
I have concurred with the adoption of the present Judgment of the InterAmerican Court of Human Rights on preliminary objections in the Castillo Petruzzi
versus Peru case. The decision taken by the Court, in dismissing the fifth and sixth
preliminary objections interposed by the respondent State (pertaining to the legal
personality and the legitimatio ad causam of the petitioning Chilean nongovernmental organization, the Fundación de Ayuda Social de las Iglesias Cristianas
(FASIC)), brings to the fore the right of individual petition under the American
Convention on Human Rights (Article 44), reaching the bases of the mechanism of
protection itself under the American Convention.
2.
The importance of the right of individual petition does not appear to me to
have been sufficiently stressed by international case-law and doctrine to date; the
attention which they have devoted to the matter has been, surprisingly,
unsatisfactory in my view, not keeping proportion with the great relevance that the
right of individual petition has under the American Convention. This is a point which
is particularly dear to me. If should be kept in mind that, ultimately, it is by the free
and full exercise of the right of individual petition that the direct access of the
individual to justice at international level is guaranteed.
3.
The question of the legitimatio ad causam of the petitioners has occupied a
central position in this phase of preliminary objections of the case Castillo Petruzzi
versus Peru, and the Inter-American Court has decided, in my view correctly, to
dismiss the fifth and sixth preliminary objections, which pertained to the matter. In
my understanding, Article 44 cannot be analysed as if it were a provision like any
other of the Convention, as if it were not related to the obligation of the States
Parties of not creating obstacles or difficulties to the free and full exercise of the
right of individual petition, or as if it were of equal hierarchy as other procedural
provisions. The right of individual petition constitutes, in sum, the cornerstone of
the access of the individuals to the whole mechanism of protection of the American
Convention.
4.
As the judgment of an international tribunal of human rights serves the wide
purpose not only of resolving the legal questions raised in a given case, but also of
clarifying and developing the meaning of the norms of the human rights treaty at
issue, and of thereby contributing to its observance by the States Parties 1, I feel
obliged to add my thoughts on the matter in this Concurring Opinion. I do so
bearing in mind the concerns raised in this respect during the public hearing before
the Court held on 08 June 1998 2, and in support to the decision taken by the Court
in the present case Castillo Petruzzi, given the necessity which I find of contributing
to clarify - also for future cases - the juridical nature and extent of the right of
individual petition under Article 44 of the American Convention.
1.
In this sense, European Court of Human Rights, Ireland versus United
Kingdom case (Merits), Judgment of 18 January 1978, Series A, n. 25, p. 62, par.
154.
2
Cf. Inter-American Court of Human Rights, Transcripción de la
Audiencia Pública Celebrada en la Sede de la Corte el 08 de Junio de 1998 sobre
Excepciones Preliminares en el Caso Castillo Petruzzi, pp. 9-12 (internal
circulation).