19
86.
If an application was not admitted for lack of a representative, this would
constitute an unwarranted restriction that would deprive the alleged victim of the
possibility of access to justice.
87.
The modification to Article 33 of the Rules of Procedure adopted by the Court on
November 25, 2003 (supra para. 79), which indicates the information that the
applications should contain, reaffirms this conclusion. The third paragraph of this
Article states that the application should contain “the names and addresses of the
representatives of the alleged victims and their next of kin” and that:
[...] If this information is not provided in the application, the Commission shall act on
behalf of the alleged victims and their next of kin in its capacity as guarantor of the public
interest under the American Convention on Human Rights to ensure that they have the
benefit of legal representation.
88.
The Court takes into consideration that the provisions of this third paragraph of
Article 33 of the Rules of Procedure concerning the procedural representation that the
Commission may exercise, was not in force when the application in this case was
lodged, but it has been the consistent practice of the Court for almost ten years. This
practice permits establishing that, when the application does not provide any
information on the representatives, the Court may hear the case.
89.
In the instant case, the Court observes that the Commission provided notarized
testimonies of the powers of attorney of 34 of the 109 persons indicated as alleged
victims in the application; they show a clear willingness to be represented by officials
of CENIDH and CEHIL in the processing of the case before the Court. Moreover, the
application indicated the address and other information on these representatives, and
provided the powers of attorney of 25 persons who were not on the list of alleged
victims. Therefore, the Secretariat, on the instructions of the President, requested the
Commission to clarify “whether the 75 alleged victims who ha[d] not granted a power
of attorney would also be represented by CENIDH and CEJIL, in which case, they
should remit the powers of attorney as soon as possible.” It also indicated that “[i]f
this is not so, the Commission should defend the interests of those persons, to ensure
that they are represented effectively throughout the proceedings before the Court.”
90.
The Commission presented a note on August 12, 2003, advising the Court that
“the original petitioners ha[d] informed it that, owing to various difficulties, they ha[d]
been unable to obtain all the powers of attorney of the [alleged] victims mentioned in
the C[ommission’s] application; however, [CEJIL and CENIDH would] assume the
representation of all the [alleged] victims in this case.”
91.
On August 22, 2003, the said representatives presented a communication from
Brooklin Rivera, the legal representative of YATAMA, addressed to the Court, in which
he stated that “[t]he indigenous organization […] YATAMA […] indicates […] that […]
CEJIL and […] CENIDH, are the legal representatives of all the YATAMA candidates, in
both the North Atlantic Autonomous Region and the South Atlantic Autonomous
Region, who were excluded from the municipal elections of November 4, 2000,” and
explained that “[t]he powers of attorney of each candidate in favor of CEJIL and
CENIDH are still being collected in each of the places of residence of the candidates”
and that “[o]wing to the distance and the number of candidates, this task has been
difficult, they would therefore present the respective powers of attorney to the Court
as they [were] collected.” In their brief with requests and arguments of November 14,
2003, CENIDH and CEJIL indicated that, on various occasions, they had requested the
State to provide the official lists of candidates presented by YATAMA for the 2000