7
ought to be guided by "the sandinista juridical conscience", xviii this principle would
hardly not have been applied. Its application not only contravenes the evaluation of
evidence in accordance with universally accepted criteria of value judgments based
on correct logical propositions and observations of experience confirmed by reality,
but it also affects the due process of law (Article 8(1) of the American Convention).
24.
The question, thus, is not one solely of unreasonable delays (pointed by the
Inter-American Court in its Judgment on the merits). Justice delayed is justice
denied, and the denial of justice comprises the additional elements which integrate
the due process of law. While a clear understanding of the wide scope of the
conventional obligations of protection does not prevail in all the States Parties to the
American Convention, xix - a clear understanding that the international responsibility
of a State may be engaged by any act, or omission, of any of its powers (Executive,
Legislative or Judicial), - very little progress will be achieved in the international
protection of human rights in our continent.
25.
To the dura lex sed lex - which not seldom amounts to the summum jus,
summa injuria, - one is to oppose the old English maxim: - "Justice must not only be
done: it must also be seen to be done". xx Moreover, if the national tribunals of the
States Parties are obliged to apply the norms of protection of the American
Convention, - and no one can doubt this in all conscience, - with all the more reason
is the Inter-American Court obliged to proceed, in the context of concrete cases (in
which the existence of victims of human rights violations has been established), to
the determination of the compatibility or otherwise with the Convention of national
laws and judicial decisions of national tribunals based on such laws, xxi in the
exercise of its duty of protection of human rights. Once called upon to pronounce on
the matter in a given cas d'espèce, this is, in my view, what the Inter-American
Court ought to do, instead of entrusting the final solution of the case to the national
tribunals.
xviii.
Article 52; and cf. Article 12.
xix.
That is, of the general obligations provided for in Articles 1(1) and 2 of the American Convention,
along with the specific obligations pertaining to each one of the rights protected by the Convention. - It is
certain, as pointed out by the Inter-American Court in its Judgment on preliminary objections (of 27
January 1995) in the present Genie Lacayo case, that it is to pronounce on the case only on the basis of
the terms of acceptance by Nicaragua of its compulsory jurisdiction in contentious matters. But it is equally
certain that such acceptance of jurisdiction refers only to the judicial means of settlement (by the Court) of
a concrete human rights case, which in no way affects the responsibility of a State Party for violations of
the rights enshrined in the Convention. It is as from the moment when a State becomes a Party to the
Convention (in the case of Nicaragua, as from 25 September 1979) that it undertakes to respect all the
rights protected by the Convention and to guarantee their free and full exercise, - starting with the
fundamental right to life. Although in the circumstances the Court cannot pronounce on the particular, the
conventional obligation of the State Party nevertheless subsists. And one may legitimately expect that the
national tribunals of the State Party bear in mind, in their decisions, the norms of protection of the
American Convention itself.
xx.
A maxim which has been invoked by the European Court of Human Rights in its Judgments in the
cases of Delcourt versus Belgium (1970, par. 31), and De Cubber versus Belgium (1984, par. 26).
xxi.
It is one thing to act as an appeals tribunal or a court of review of the decisions of tribunals in the
framework of domestic law, which the Inter-American Court cannot do. It is quite another thing, wholly
distinct, to proceed, in the context of a concrete contentious case (in which the existence of victims of
human rights violations has been established), to the determination of the compatibility or otherwise with
the provisions of the American Convention of administrative acts and practices, national laws and decisions
of national tribunals, which the Inter-American Court surely can and ought to do.