2
5.
Therefore, the respondent Government cannot subsequently raise that preliminary
objection before the Court, as it failed to raise it, in a timely manner, for the decision of the
Commission. If, as in the present case, the respondent Government waived that objection
by not raising it in limine litis in the prior procedure before the Commission, it is
inconceivable that the respondent Government may freely withdraw that waiver in the
subsequent procedure before the Court (estoppel/forclusion).
6.
The grounds of my position, which I reiterate here with conviction, are expounded in
detail in my Separate Opinion in the Judgment of the Court of 4 December 1991, in the
Gangaram Panday case (Preliminary Objections). There is no need to repeat them here ipsis
literis, but rather to single out and develop some aspects which I deem especially relevant in
relation to the present case of Loayza-Tamayo, just as I did in my Separate Opinion in the
Judgment of the Court of 30 January 1996 in the Castillo Páez case (Preliminary Objections).
7.
Just as the Commission’s decisions on the inadmissibility of petitions or
communications are considered definitive and non-appealable, its decisions of admissibility
should be treated likewise, also considered definitive and unsusceptible to reopening by the
respondent Government in the subsequent procedure before the Court. Why is it that the
respondent Government is allowed to attempt to reopen a decision on admissibility by the
Commission before the Court and an individual complainant does not have the same faculty
to question a decision on inadmissibility of the Commission before the Court?
8.
Such reopening of review by the Court of a decision on admissibility by the
Commission creates an imbalance between the parties, in favor of the respondent
governments (all the more so since individuals currently do not even have locus standi
before the Court). This being so, the decisions of inadmissibility by the Commission should
also be allowed to be reopened by the alleged victims and submitted to the Court. Either all
decisions -of admissibility or not- of the Commission are allowed to be reopened before the
Court, or they are all kept exclusive to the Commission.
9.
This understanding is the one that is best suited to the basic notion of collective
guarantee underlying the American Convention on Human Rights, as well as all treaties of
international protection of human rights. Instead of reviewing the decisions on admissibility
by the Commission, the Court should be able to concentrate more on the examination of
questions of substance in order to fulfill with more speed and security its role of interpreting
and applying of the American Convention, determining the occurrence or not of violations of
the Convention and its juridical consequences. The Court is not, in my view, a tribunal of
appeals of decisions of the Commission on admissibility.
10.
The alleged reopening of questions of pure admissibility before the Court surrounds
the process with uncertainties, prejudicial to both parties. It further generates the possibility
of divergent or conflicting decisions on the matter by the Commission and the Court, thus
fragmenting the unity inherent in a decision of admissibility. This in no way contributes to
the perfecting of the system of guarantees of the American Convention. The principal
concern of both the Court and the Commission should lie, not in the zealous internal
distribution of attributions and competences in the jurisdictional mechanism of the American
31; and the judgments cited supra (Note 1) in the three cases concerning Honduras, paragraphs 88-90 (Velásquez
Rodríguez), 90-92 (Godínez Cruz), and 87-89 (Fairén Garbi and Solís Corrales); and earlier, Decision of the Court of
1981 in the matter of Viviana Gallardo et al., paragraph 26.
3
The 1996 Judgment on the Preliminary Objections in the Castillo Páez case, paras. 41-45.