111
Pleadings of the Commission
220. The Commission did not refer in its application to a violation of Article 5 of the
Convention. However, in its November 1, 2001 brief in which it submitted its
observations on the autonomous brief filed by the representatives, it pointed out that
“taking into account that said argument does not expand the object of the
controversy of the Mack case when it was before the [Commission],” there is no
impediment under the Convention for the Court to analyze the possible violation of
said Article, based on the iura novit curia principle. Furthermore, the application
against it is filed before the Court, the State knows the central object of the
controversy, in other words, that the factual and legal basis that enables an effective
exercise of the right of defense of the State is that the application filed by the
Commission and the brief by the representatives of the next of kin of the victim
substantially contain the same legal and factual controversies that were the object of
the proceeding before the Commission. Finally, that the limits set forth in the
Convention to the Court’s sphere of decision-making have not been altered by the
brief of the representatives of the next of kin of the victim, who merely reaffirm the
facts stated in the application and give them a different juridical definition, for which
reason this does not affect the right of defense of the State nor the powers granted
to the Commission by the Convention.
Pleadings of the State
221. In accordance with what the Court set forth in paragraphs 94 and 111, the
State acquiesced unconditionally to the facts described by the Commission in its
application and to the request of the representatives of the next of kin of the victim
that the Court find that there was a violation of Article 5 of the Convention.
Considerations of the Court
222.
Article 5(1) of the Convention states that:
[e]very person has the right to have his physical, mental, and moral integrity respected.
[...]
223. In their brief with requests, pleadings, and evidence, the representatives of
the next of kin of the victim asked that the Court find that there was a violation of
Article 5 of the American Convention to the detriment of the next of kin of Myrna
Mack Chang. It should be underlined that the Inter-American Commission did not
allege a violation of said Article. In addition, as stated above, in its March 3, 2003
brief, the State acquiesced with respect to abridgment of Article 5 of the Convention.
224. The Court has already established that it is possible for the victims, their next
of kin or their representatives to allege violation of other Articles of the Convention
than those already included in the object of the demand filed by the Commission,
based on the facts contained in said application, for which it refers to the “Five
Pensioners” case, in which it stated that:
[w]ith respect to inclusion of rights other than those already encompassed by the
application filed by the Commission, the Court deems that the applicants can invoke
said rights. It is they who are entitled to all the rights embodied in the American
convention, and not admitting this would be an undue restriction of their status as
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