2
had in mind the concomitant imperatives and needs of realization of justice, and of
preservation of the juridico-procedural equality and security under the American
Convention.
6.
As to the distinct role of the individual petitioners and of the Inter-American
Commission in the procedure before the Court, this latter took into consideration the
approaches of both the thesis of procedural law, with emphasis on the exclusive faculty
of the States Parties and of the Commission to submit a case to the Court (Article 61(1)
of the American Convention), and the thesis of substantive law, with emphasis on the
condition of the individuals of titulaires of the rights set forth in the Convention. From
the ineluctable tension between the two thesis (which correspond to two trends of
juridical thinking), there resulted the understanding that the new faculty of the
petitioners to present in an autonomous way their arguments before the Court should
pertain to the factual and juridical elements contained in the complaint presented by the
Commission3.
7.
In the one year and a half of the new Regulations of the Court being in force, the
petitioners have reiteratedly referred to rights, other that the ones contained in the
complaint presented by the Commission, which they considered to have also been
violated, not only in the present case of the Five Pensioners versus Peru, but also on
other recent occasions4, in contentious cases which in due course will be resolved by the
Court in the respective Judgments. In the present case, the controversy arisen between
the representatives of the alleged victims and their relatives, on theone hand, and the
Inter-American Commission, on the other (pars. 149-150), has required from the Court
a pronouncement on this specific point.
8.
The Commission opposed itself that the representatives of the alleged victims
and their relatives could add, - in their brief of submissions, arguments and evidences, new factual and juridical elements (additional rights) besides the ones already contained
in the complaint interposed by the Commission before the Court. This controversy, in a
way, leads the Court, in the present Judgment in the case of the Five Pensioners versus
Peru, to clarify, and to place in adequate perspective, the fundamentally distinct roles of
the petitioners and of the Commission in the procedure before the Tribunal.
9.
The Court, called upon to pronounce itself on this matter, has had in mind the
experience - of one and a half years so far - which begins to accumulate on the subject
at issue, under its new Regulations, as well as, - once more, as always, - the
concomitant imperatives of realization of justice, and of preservation of the juridicoprocedural equality and security in the procedure under the Convention. As to the
factual elements of the complaint presented by the Commission (the object of the
process), the Court has accepted the argument of the Commission, - with the
exception, naturally, of the supervening facts, - in the following terms (pars. 153-154):
"As to the facts object of the process, this Tribunal considers that it is not
admissible to allege new facts, distinct from those raised in the complaint, without prejudice
of referring to those which may explain, clarify or discard the onew that have been
mentioned in the complaint, of rather, respond to the submissions of the complainant.
3
.
4
.
Cf. Informe..., op. cit. infra n. (7), pp. 28-30.
Cases Mirna Mack Chang versus Guatemala, Maritza Urrutia versus Guatemala, Centro de
Reeducación del Menor versus Paraguay, Ricardo Canese versus Paraguay, Juan Sánchez versus Honduras, and
Gómez Paquiyauri versus Peru.
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