4
domestic legal orders in the present domain of protection, and deprives the Court of
its attribution to pronounce on the judicial obligations of the respondent State. My
understanding is, on the contrary, in the sense that, in the present domain of
protection, there is a constant interaction between international law and domestic
law, to the benefit of the protected human beings.
12.
Human rights treaties, e.g., confer functions of protection upon the organs of
the States Parties, which have the primary responsibility of safeguard of those rights.
If, on the one hand, they impose on the individual complainants the duty of prior
exhaustion of domestic law remedies, xi on the other hand they impose at the same
time on the respondent States the duty to provide effective domestic law remedies.
If States were not obliged to provide effective local remedies, individual
complainants should not be required to exhaust such remedies as a condition of
admissibility of their petitions or complaints. The duties of the respondent and the
complainant, in this particular, are essentially complementary in the present domain
of protection.
13.
In rendering the Judgment on the merits in Genie Lacayo, on 29 January
1997, the Inter-American Court pointed out that the proceedings in the case at
Nicaraguan domestic law level had lasted more than five years (paragraph 81), and
even so it expressed its expectation that the Supreme Court of Justice would remedy
the procedural violations of the rights enshrined in the American Convention in the
ambit of domestic law in resolving the then pending application for Cassation
(recurso de casación) (paragraph 94). But shortly after that Judgment on the
merits, the Judgment n. 8 of the Supreme Court of Justice of Nicaragua (of 12
February 1997), in dismissing the Cassation (recurso de casación), frustrated the
expectation of the Inter-American Court.
14.
The Nicaraguan Supreme Court of Justice itself, in a previous judgment, of 20
December 1993, referred xii the case to the military jurisdiction. Following the
Judgment on the merits of the Inter-American Court, the Supreme Court of Justice
dismissed - on questions of form - the Cassation (recurso de casación), on the basis
of the military legislation (decree n. 591). In sum, the 1993 judgment determined
that members of the military should be tried in a special military forum for ordinary
crimes, and the 1997 judgment found that the application of the military legislation
had been correct.
15.
Even so, in the first judgment (of 1993) the Supreme Court of Justice was
attentive to indicate that it was aware of the shortcomings of the aforementioned
military legislation: it deemed it fit to ponder, in relation to the application of the
decrees ns. 591 and 600, that
although it is not pleased with the law applicable to the case at issue, because, in its
view, it is not in keeping with the new trends and doctrines on the matter, nor with its
own thinking, as it considers that the members of the military ought to be tried in the
ordinary courts when they are involved in facts qualified by law as ordinary crimes or
offenses, and that the military courts should know only cases which did not
transcend the strictly military ambit (...,) nevertheless and much to its regret,
xi.
Not as a question pertaining to the merits, but rather as a condition of pure admissibility of a
complaint, to be resolved in limine litis, - as I sustain in my Dissenting Opinion in the Resolution of this
Court of 18 May 1995 in the present Genie Lacayo case.
xii.
By means of the interpretation of a constitutional provision (Article 159).