8
32.
The second preliminary objection interposed by the Government is based on the violation
by the Commission, to the detriment of the Government, of the procedure established by Articles
50 and 51 of the Convention. Consequently, the Government seeks the Court’s dismissal of the
application on the ground that it was improperly submitted.
33.
The Government alleges that the procedure spelled out in the abovementioned articles of
the Convention consists of a series of steps, the first of which falls exclusively to the Commission
and would be exhausted once the report has been processed. The second step pertains to the
period of three months in which the matter is either settled or submitted to the Court. The third
comprises the exclusive jurisdiction of the Court once the case has been referred to it in timely
fashion within the abovementioned period; otherwise, it would be up to the Commission to take
the measures provided in Article 51 of the Convention. These three, successive steps, allow for no
interference; nor could they be omitted without damaging the right of defense of the States
Parties.
34.
The Government believes that the Commission joined together and confused the various
measures and functions that it is charged with under Articles 50 and 51 of the Convention and, in
so doing, prevented the parties from discovering with any precision whether a given procedural
phase had been exhausted and which of the applicable deadlines were of an obligatory character.
According to the Government, it matters little whether such confusion arose from an erroneous
interpretation or from negligence on the part of the Commission; the fact is that it has had a
negative effect on the rights granted to Colombia under the Convention.
35.
In this regard, the Government notes that on September 26, 1991, the Commission
adopted its Report Nº 31/91, in which it set forth various recommendations to the Government,
and decided to include it in its Annual Report to the General Assembly of the Organization of
American States if it did not receive a response from Colombia within 90 days. The Government
adds that by note of January 16, 1992, which in its opinion was presented after the
aforementioned 90-day period had expired, it requested reconsideration of the case pursuant to
Article 54 of the Commission’s Regulations, a provision that only applies to States that are not
Parties to the Convention. By letter dated February 28, 1992, the President of the Commission
informed the Government that he had agreed to postpone the final decision on Report Nº 31/91
on the basis of the arguments presented by Colombia and its expressed willingness to cooperate,
adding that his decision in no way implied that the report in question, approved in September
1991, had become ineffective. Rather, he had merely suspended the decision regarding its
adoption as a final report, in order to give the Government a new opportunity to fully comply with
the specific recommendations contained therein.
36.
In the Government’s opinion, the decision taken in February 1992, occasioned the rejection
of the request for reconsideration of the report governed by Article 50 of the Convention, while
the decision as to the report under Article 51 was postponed. It was not until September 25,
1992, that the Commission decided to reject the request for reconsideration and ratify its Report
Nº 31/91, as also to refer the case to the Court. In addition, the Commission set September 25,
1992, as the final date of the report.
37.
Given the above, the Government is of the opinion that the matter could no longer be
submitted to the Court, by virtue of the fact that the three-month period under Article 51 of the
Convention expired on three different occasions, depending on whether one bases one’s
calculations on September 26, 1991, January 16, 1992, or February 28, 1992. Since the
application was brought to the Court by the Commission on December 24, 1992, the submission
took place long after any of the abovementioned periods (which are obligatory in character) had
expired.