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American Court (Article 41, subparagraphs a, b, c, d and g, of the Convention); and
b) the function that does culminates in an application before the Inter-American
Court (idem, subparagraph f). Each of these functions has its own nature, regulation
and effects, in the terms of the Convention.
8.
With regard to the power or “competence” mentioned sub b), subparagraph f)
of Article 41 sets out a specific task which must be considered in order to establish
the corresponding legal assumptions, characteristics and consequences: “to take
action on petitions and other communications pursuant to its authority under the
provisions of Articles 44 through 51 of this Convention.”
9.
As may be seen, the competence assigned to the Commission in
subparagraph f) of Article 41 covers the different acts that culminate in the
submission of an application before the Court in order to receive from this a
jurisdictional decision. Consequently, it refers to an ambit in which the powers of the
Commission and the Court are adjusted, at their respective times.
10.
The first provision expressly mentioned in subparagraph f) of Article 41
encompasses two fundamental issues, one of a subjective nature (giving legal
standing to the procedure) and the other objective (material competence): a) the
legal standing to take action on petitions and thus set in movement the procedure
that will culminate in the deployment of the contentious jurisdiction of the Court; and
b) the subject-matter of these petitions, which is also that of the respective
procedure before the Commission and before the Court: behavior that constitutes “a
violation of this Convention by a State Party.” The same consideration exists in
Article 45.1, which regulates the hypothesis of a complaint by one State Party
against another, due to “a violation of a human right set forth in this Convention.”
11.
The same indication with regard to the subject-matter of the petition, the
procedure that this sets in motion and the possible application that the Commission
will submit to the Court appears in various parts of Article 48.1, initial paragraph,
which refers to “a petition or communication alleging violation of any of the rights
protected by this Convention;” and subparagraph f) which alludes to friendly
settlement on the basis of “respect for the human rights recognized in this
Convention.”
12.
Throughout the body of regulations applicable to the Commission there are
other provisions which are relevant for the matter in hand, such as Articles 1 and
23.1 of the Statute and 31, 41.b and 45.1 of the Rules of Procedure.
13.
In this way, exercise of the contentious jurisdiction of the Court is initiated.
According to the Convention, this jurisdiction extends to interpretation or application
of the American Convention (Article 62.1 and 3), which, in this regard, is
implemented in matters relating to the “violation of a right or freedom protected by
this Convention” (Article 63.1). Thus the ambit of the Court’s material competence
on contentious matters is also established.
14.
Evidently, preparatory activities for the contentious proceeding before the
Court and participation in these in no way exhaust the powers of the Commission
and the Court.
The former can and does carry out other activities of great
importance for the promotion and defense of human rights, and even endeavors to
expand the inter-American regime of protection; this may be inferred from the last
subparagraphs of Article 19 of its Statute, in particular. Likewise, the advisory