12
and c) systematize and publish all the documents regarding the military
operations against the Guerrilha do Araguaia. As such, the Commission requested
that the Court dismiss this preliminary objection.
24.
The representatives affirmed the autonomy of the Commission to evaluate
the compliance with the recommendations of its reports and to decide on whether
to submit the case to the Court. The reasons for the submission cannot be the
objective of a preliminary objection, and Brazil did not argue any error on behalf
of the Commission that could be a detriment to the right to defense. On the other
hand, the State intends to apply one of the conditions of the actions of domestic
law to the present case, which defines a procedural legal interest as “the need
demonstrated by the party in the sense of obtaining the jurisdictional authority to
guarantee the effectiveness of rights [and] avoid the continuance of harm
suffered.” The State intends to not analyze the merits of the case, under the
argument that the eventual requirements issued by a judgment of the Court will
already be underway via actions implemented in the domestic forum. They
expressed that the State’s arguments do not concern the jurisdiction of the Court
or the admissibility of the case, but rather the measures of reparation requested
by the Commission and the representatives. Therefore, the arguments posed by
Brazil refer to “a question closely linked to an examination of the effectiveness of
said measures,” and as a consequence, do not constitute a preliminary objection.
25.
Likewise, the representatives expressed that the measures adopted by
Brazil are insufficient, and also, one of them is contrary to the interests of the
next of kin. According to the representatives, “important controversies still exist
regarding the facts complained of […] and those recognized by the State[, which]
extend to those [debated] rights and the effectiveness of the measures adopted
by the State in order to provide justice, [access to] the truth, prevent future
violations, and compensate the next of kin of the [alleged] disappeared victims in
the present case.”
2. The Court’s considerations
26.
The Court notes that under the same concept of lack of procedural legal
interest, the State referred in reality to two different assumptions: a) one related
to the actions of the Inter-American Commission regarding the State’s report in
response to the Report on the Merits No. 91/08, and b) another related to the
measures of reparation adopted by Brazil, which, it is alleged, attend to the
wishes of the Commission and representatives.
27.
Regarding the decision of the Inter-American Commission to submit the
case to the Court’s jurisdiction, the Court has affirmed that the assessment made
by the Commission regarding whether to send the case to the Court is an
attribution that is solely and autonomously of the Commission, and as a
consequence the reasons it had for sending it cannot be subject to a preliminary
objection. Nevertheless, what can be subject to a preliminary objection, is the
omission or violation of all or some of the procedural steps enshrined in Article 50
and 51 of the Convention, in a way that provokes procedural imbalance26 or a
serious error that affects the right to defense of a party to the case before the
Court.27 The party that affirms the existence of a serious error must demonstrate
26
Cf. Case of the 19 Tradesmen v. Colombia, Preliminary Objection. Judgment of June 12,
2002. Series C No. 93, para. 31.
27
Cf. Case of the Dismissed Congressional Employees (Aguado - Alfaro et al.) v. Peru.
Preliminary Objections, Merits, Reparations, and Costs. Judgment of November 24, 2006. Series C No.
158, para. 66; Case of Escher et al. v. Brasil. Preliminary Objections, Merits, Reparations, and Costs.