51.
The State indicated that, in a contentious case, it was essential that any legislative
measure that was contested infringed the liberties of at least one specific individual because,
to the contrary, the Court did not have competence to assess the compatibility of that
measure with the Convention. In this case, it indicated that the Court did not have
competence to examine the representatives’ request concerning the adoption of legislative
measures to avoid retrogression in the combat against slave labor in Brazil. This was because
the said request was conditional on the existence of draft laws seeking to amend article 149
of the Penal Code, and that such draft laws had not been enacted.
52.
The Commission observed that the representatives had advised the Court of the
legislative measures that were being adopted at that time, not with regard to the specific
victims in this case, but rather to provide a context that demonstrated the relevance of the
matter and to provide the Court with essential elements so that any measures of nonrepetition that might be ordered accorded with such measures and were pertinent for the
existing situation of slave labor, including the legislative framework.
53.
The representatives stated that they had requested “as a measure of reparation,”
that the Court indicate to the State that it should abstain from adopting legislative measures
that represented a retrogression in the combat against slave labor in Brazil, due to the
existence of draft legislation that sought to limit the scope of article 149 of the Penal Code
in relation to practices similar to slavery.
C.2. Considerations of the Court
54.
The Court notes that the State’s argument referred to a measure of reparation
requested by the representatives to the effect that the Court order the State to refrain from
adopting legislative measures that could represent a retrogression in the combat against
slave labor in Brazil. The Court recalls that, in order to grant a measure of reparation, it must
verify that there is a causal nexus between the facts of the case, the violations that have
been declared, the damage proved, and the measures requested. 41 Consequently, the Court
considers that it is not possible to analyze the objection filed by the State, because it cannot
be decided at a preliminary stage, but depends directly on the merits of the matter. 42
Therefore, the Court rejects this preliminary objection.
D. Alleged lack of jurisdiction ratione temporis with regard to facts prior to the
date of acceptance of the Court’s jurisdiction, and alleged lack of jurisdiction
ratione temporis in relation to facts prior to the State’s adhesion to the
Convention
55.
The Court will analyze together the two preliminary objections on temporal limitations
(ratione temporis) filed by the State, because they refer to related assumptions and involve
similar arguments by the State, the Commission and the representatives.
D.1. Arguments of the State and observations of the Commission and of the
representatives
Cf. Case of Ticona Estrada et al. v. Bolivia. Merits, reparations and costs. Judgment of November 27, 2008. Series
C No. 191, para. 110, and Case of López Lone et al. v. Honduras. Preliminary objection, merits, reparations and
costs. Judgment of October 5, 2015. Series C No. 302, para. 288.
41
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections. Judgment of June 26, 1987. Series C No. 1,
para. 96, and Case of Quispialaya Vilcapoma v. Peru. Preliminary objections, merits, reparations and costs. Judgment
of November 23, 2015, Series C No. 308, paras. 30 and 32.
42
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