14
functions other than the contentious one 39, prerrogative of the future permanent
Inter-American Court 40.
43.
It would, therefore, be an institutional structure distinct from that of the
European system of protection, attentive to the reality of the needs of protection of
our continent. But it would have in common with that system, the purpose of
overcoming duplications, delays and procedural imbalances, inherent to the current
mechanism of protection under the American Convention 41, which require its
improvement. Above all, this qualitative advance would fulfill, in my understanding,
an imperative of justice. The jus standi - no longer only locus standi in judicio, without restrictions, of individuals, before the Inter-American Court itself,
represents, - as I have indicated in my Opinions in other cases before
the Court 42, - the logical consequence of the conception and formulation of rights
to be protected under the American Convention at international level, to which it
ought to correspond necessarily the full juridical capacity of the individual
petitioners to vindicate them.
44.
The jurisdiccionalization of the mechanism of protection becomes an
imperative as from the recognition of the essentially distinct roles of the individual
petitioners - the true complainant party - and of the Commission (organ of
supervision of the Convention which assists the Court). Under the American
Convention, the individuals mark presence at the beginning of the process, in
exercising the right of petition in view of the alleged damages, as well as at the end
of it, as beneficiaries of the reparations, in cases of proven violations of their rights;
there is no sense in denying them presence during the process. The right of access
to justice at international level ought in fact to be accompanied by the guarantee of
procedural equality (equality of arms/égalité des armes) in the proceedings before
the judicial organ, an element essential to any jurisdictional mechanism of
protection of human rights, without which such mechanism will be irremediably
mitigated.
45.
In order to reach this degree of procedural improvement, we ought to count
on the necessary and indispensable full belief on the part of the States that
integrate the inter-American system of protection that the jus standi of individuals
before the Court is a measure to the benefit not only of the petitioners but also of
themselves (those which become respondent States), as well as of the mechanism
of protection as a whole. And this by virtue of the jurisdictionalization, an additional
guarantee of the prevalence of the rule of law in the whole contentieux of human
rights under the American Convention.
39.
Like those of the undertaking of missions of in loco observation and the
elaboration of reports.
40.
Enlarged, functioning in chambers, and with considerably larger human and
material resources.
41.
As well as to that of the European Convention, which served as model to it.
42.
Cf., in this sense, my Separate Opinions in cases Castillo Páez (Preliminary
Objections, Judgment of 30.01.1996), pars. 14-17, and Loayza Tamayo (Preliminary
Objections, Judgment of 31.01.1996), pars. 14-17, respectively, reproduced in: OAS,
Informe Anual de la Corte Interamericana de Derechos Humanos - 1996, pp. 56-57 and 7273, respectively.