CONCURRING OPINION OF
JUDGE A.A. CANÇADO TRINDADE
1.
In voting in favour of the adoption, by the Inter-American Court of Human
Rights, of the present Judgment on the merits of the case "The Last Temptation of
Christ" (Olmedo Bustos and Others versus Chile), which safeguards the right to the
freedom of thought and expression, I feel obliged to express my thoughts on the highly
relevant juridical implications of the decision of the Court, as the foundation of my
position in this respect. The present Judgment of the Court on the case "The Last
Temptation of Christ" has a bearing on the fundamental question of the very origin of
the international responsibility of the State, as well as on the extent of the
conventional obligations of protection of human rights. This can be inferred from its
categorical paragraph 72, in which the Court expresses, in my view correctly and
lucidly, its understanding to the effect that
"(...) the international responsibility of the State can generate by acts or
omissions on the part of any of its powers or organs, irrespective of their hierarchy,
which violate the American Convention. That is, any act or omission, imputable to the
State, in breach of the norms of the International Law of Human Rights, engages the
international responsibility of the State. In the present case this latter was generated by
the fact that Article 19.12 of the Constitution establishes prior censorship in movie
production and, thereby, determines the acts of the Executive, Legislative and Judicial
Powers".
2.
The question of the compatibility of a norm of domestic law of a State Party
with the American Convention on Human Rights thus returns to the consideration of
the Court, - and, in the present case, the norm at issue being one of constitutional
level. This is a question that, by its implications, has led me to develop, on earlier
occasions, some thoughts, in my Dissenting Opinions in the cases El Amparo, Caballero
Delgado and Santana, and Genie Lacayo. It is not my intention here to reiterate them,
as the object of my dissenting position in those cases (in my view a self-limitation of
the Court of the extent of its own faculties of protection) no longer exists in the
subsequent and contemporary case-law of our Tribunal, which has much evolved in
this respect, above all as from the new criterion on the matter established in the case
Suárez Rosero (cf. infra). Nevertheless, as it is a central question in the cas d'espèce, I
deem it proper to recall the main points raised in those thoughts, in so far as they have
a direct bearing on the examination of the matter in the circumstances of the present
case "The Last Temptation of Christ".
3.
In the case of El Amparo (Reparations, 1996)1, concerning Venezuela, I
sustained, in my Dissenting Opinion referred to, that the very existence of a legal
provision of domestic law can per se create a situation that directly affects the rights
protected by the American Convention, by the risk or the real threat that its
applicability represents, without it being necessary to wait for the occurrence of a
damage; otherwise, the duty of prevention, set forth in the case-law of the InterAmerican Court itself, could hardly be sustained (pars. 2-3 and 6). After I referred to
the international case-law in support of this position (pars. 5 and 10), I added that, as
from the moment that violations of the protected human rights were found, the
examination of the incompatibility of norms of domestic law with the American
Convention is no longer "an abstract question"; that is, the questioning of the
compatibility with the Convention of the existence of a norm of domestic law in force,
1
.
Inter-American Court of Human Rights (IACtHR), Judgment of 14.09.1996, Series C, n. 28.