9
29.
In the instant case, the supposed failure of the representatives to comply with the
time limits established in the Rules of Procedure for presentation of the pleadings and
motions brief and its attachments does not support a preliminary objection (supra para.
17), because it does not contest the admissibility of the application or prevent the Court
from hearing the case. Indeed, even if, hypothetically, the Court should accept the State’s
claim, it would in no way affect its competence to examine the merits of the dispute.
Therefore, the Court rejects this claim because it does not constitute a preliminary
objection.
30.
Despite the above, the Court will examine the State’s argument in relation to the
admissibility of the pleadings and motions brief and its attachments in the chapter of this
judgment concerning evidence (infra paras. 55 to 59).
C)
Impossibility of alleging violations not considered during the proceedings before the
Inter-American Commission
31.
The State indicated that, in its application, the Commission had asked the Court to
declare non-compliance with Article 28 of the Convention. It indicated that the
representatives had also alleged non-compliance with this article, stating that, on the
occasion of the 130th regular session of the Inter-American Commission, the representative
of the State had affirmed, during a working meeting, that there were communication
difficulties with the state of Paraná. It alleged that the Court’s case law has established that
a violation that was not assessed during the proceedings before the Commission could not
be included at this stage, because the State had been unable to comment on the issue
before the Commission prior to the case being submitted to the Court. It added that the
said provisions did not establish any right or freedom, but rather rules for the interpretation
and application of the Convention, and that this instrument, particularly Articles 48(1) and
63, clearly established that the organs of the inter-American system may only examine
possible violations of rights and freedoms. Based on the above, the State considered that
the Court should not assess the alleged violation of Article 28 of the Convention.
32.
The Commission argued that, under Article 28 of the Convention, both the Federal
Government and the state government must adopt the necessary measures to ensure
compliance with the obligations contained in the American Convention. The said Article
establishes obligations, compliance with which, as with the obligations arising from Articles
1(1) and 2 of the Convention, can be verified and ruled on by the supervisory organs of the
inter-American system. It also indicated that “the State – in its answer to the application –
did not deny having used in its defense during the proceedings before the [Commission] the
alleged difficulties in coordinating work with the authorities of the state of Paraná, during
the Commission’s 130th regular session; this had caused the Commission to refer to this
specific issue in light of Article 28 of the Convention when issuing its report on merits in the
instant case (and not only in the application brief).” It stated that the Court has the power
to examine compliance with the obligations arising from Article 28 of the Convention and,
consequently, asked the Court to reject the preliminary objection.
33.
The representatives agreed substantially with the Commission and added that the
Court has recognized that “facts that occur after the application has been submitted can be
presented to the Court up until it delivers its judgment. Regarding the inclusion of new
articles, the Commission and the [representatives] are legally entitled [to submit them to
the consideration of the Court], in the understanding […] that, if this possibility was not
admitted, it would restrict their status as subjects of international law.” In addition, the
Court’s authority to examine these articles, included on the basis of the iura novit curia
principle, has been extensively supported by international case law. Consequently, the