14
Inter-American Court and Commission – that acted in the most hasty and
unsatisfactory fashion throughout this legal Interpretation of Judgment proceeding.
49.
I absolutely cannot accept, much less so when it comes to a matter of
peremptory law (such as access to justice), that judicial reasoning continue to find
inspiration in the discredited doctrine of obligations of means or conduct. Conventional
obligations are, much to the contrary, obligations of result. Nor can I accept that the
Court will excuse itself from fulfilling its duty to control conventionality in this
Interpretation of Judgment proceeding, finding it enough to leave an examination of
potential difficulties that it already seems to anticipate as possible to a later stage of
supervision of compliance with the Judgment.45
50.
Paragraph 7(a) of the request for Interpretation of Judgment filed by
petitioners in the instant Case of the Dismissed Congressional Employees is concerned
with an issue which this very Court recently held as being a part of jus cogens. As
already explained, in Opinions successively issued within this Court I have strived to
achieve – successfully, I now believe – the extension of the material scope of jus
cogens (cf. supra). Unfortunately, in this Judgment on Interpretation, the Court has
refrained from upholding its most perceptive decisions on the right to a fair trial.
51.
The Court even deviated from its own Judgment on merits and reparations (of
Nov. 24, 2006) rendered in the instant Case of the Dismissed Congressional
Employees, in which it had denied the so-called validity of any normative limitation to
a "genuine and effective access to justice," precisely because, in the light of Articles 8
and 25 (viewed together), in relation to Articles 1(1) and 2 of the Convention, access
to justice "cannot be arbitrarily restricted or annulled" (para. 119). Such statement by
the Court relied on its own obiter dictum in the earlier Judgment rendered in the Case
of Goiburú et al. v. Paraguay (cf. supra), in which the Court had approached access to
justice as "a peremptory norm of international law" (para. 131), i.e. as being a part of
jus cogens.
52.
If this is so, then why did the Court choose the easiest, and also untenable,
route of declaring the request for interpretation entirely inadmissible in this
proceeding, thereby failing to reaffirm and strengthen its best line of decisions
regarding the issue raised in paragraph 7(a) of said request? Basically, this decision
by the Court seems to suggest that neither in life nor in the world of the application of
the Law is it permissible to expect to have full justice or even the slightest sign of
coherence.
53.
In its previous Judgment on merits and reparations in the instant Case of the
Dismissed Congressional Employees, the Court expressly noted that
“this case took place within the framework of practical and normative
impediments to a real access to justice and a general situation of absence of
guarantees and ineffectiveness of the judicial institutions to deal with facts such
as those of the instant case. (...)
(...) this case occurred in the context of a situation of legal uncertainty
promoted by laws that limited access to justice in relation to the evaluation
procedure and eventual dismissal of the alleged victims, so that they did not
have certainty about the proceedings they could or should resort to in order to
claim the rights they considered had been violated. (...)" (paras. 129 and 146).
54.
This being so, I was somewhat surprised when I realized that, in their oral
arguments submitted at the public hearing of Jun. 27, 2006, held in the city of San
Salvador before the Inter-American Court, prior to the rendering of the Judgment on
45
.
As inferred from para. 19 of this Judgment on Interpretation.