REASONED CONCURRING OPINION
OF JUDGE SERGIO GARCÍA RAMÍREZ
I concur with my colleagues in the judgment delivered in the Five Pensioners v. Peru
case, notwithstanding my wish to explain the reasons I took into consideration to
issue my concurring opinion on several points analyzed in that decision.
1. Facts not specified in the application
The tendency that can be clearly observed in the successive Rules of Procedure of the
Court – particularly those in force since 2000 – has led to the establishment of
increasing procedural rights for the alleged victim. Thus, the importance and the
action of the individual affected by the violation of the right are vindicated during the
proceeding. I consider this to be the best option at present and the best route to
follow for the future of the inter-American system, although the final destination
remains a long way off.
Naturally, this recognition of procedural rights has a limit: the provisions of the
American Convention and other treaties that the Court may apply. Within this
framework, the Court has acted to regulate the actual participation in the proceeding
of the alleged victim, who is, undoubtedly, the owner of the juridical rights that have
been harmed and of the corresponding violated rights. This characteristic converts
the victim into the subject of the disputed issue; that is, into a party in the material
sense. To the contrary, the Commission is only a party in the formal sense,
according to the well-known Carneluttian characterization: it is attributed the
ownership of the procedural action in order to request a ruling of the international
jurisdiction in a proceeding.
Currently, the Convention grants this faculty, which legitimizes direct access to the
Court, to both the Commission and the States that have recognized the contentious
jurisdiction of the Court, but has not conferred it – at this stage of the system’s
evolution – on the individuals affected by the violation of their rights. At times, it
has been suggested that this legitimization could be recognized to individuals, as
already occurs in the European system, de lege ferenda. Obviously, this recognition
will depend on the spheres of competence of and advances in the inter-American
system, which are being developed slowly but surely.
The procedural action is expressed in the juridical act of the application, which
initiates the jurisdictional proceedings. This is of crucial importance for defining the
substance of the proceeding. The application, which can only be submitted by the
Inter-American Commission – or a State, as I mentioned earlier – describes the facts
examined in the previous stage before the Inter-American Commission, and also
delimits the substance of the proceeding that is beginning. The judgment must be
evaluated and decided congruently and integrally on the basis of these facts. Thus,
the State’s defense countering the claims of the Commission – which are asserted
during the procedural action – are concentrated on the facts set out in the application
(without detriment to the exceptional possibility of supervening facts) by the entity
that is legitimized to formulate it. In brief, it is only the Commission, acting as
plaintiff, which sets forth the facts that constitute the factual basis of the proceeding
and the judgment.
As a court that hears cases and makes rulings, the Inter-American Court has the
authority to apply the law to the disputed facts and defines their juridical