-50representative of the International Committee of the Red Cross seeking
information that could provide evidence on the whereabouts of Ernestina and
Erlinda. Unfortunately, it was unsuccessful. The State will continue to conduct
an exhaustive investigation into the case in the ordinary courts and also
through a commission; and
h)
The Amnesty Act has not been used in this case, or invoked by the
State; consequently, the Court does not have jurisdiction to “rule on an
alleged violation that has not been committed against the alleged victims.”
Considerations of the Court
52.
Article 8(1) of the American Convention establishes that:
1. Every person has the right to a hearing, with due guarantees and within a reasonable
time, by a competent, independent, and impartial tribunal, previously established by law,
in the substantiation of any accusation of a criminal nature made against him or for the
determination of his rights and obligations of a civil, labor, fiscal, or any other nature.
53.
Article 25 of the American Convention stipulates that:
1. Everyone has the right to simple and prompt recourse, or any other effective recourse,
to a competent court or tribunal for protection against acts that violate his fundamental
rights recognized by the constitution or laws of the state concerned or by this Convention,
even though such violation may have been committed by persons acting in the course of
their official duties.
2.
The States Parties undertake:
a) to ensure that any person claiming such remedy shall have his rights determined
by the competent authority provided for by the legal system of the state;
b)
to develop the possibilities of judicial remedy; and
c) to ensure that the competent authorities shall enforce such remedies when
granted.
54.
The Court recalls that the purpose of international human rights law is
to provide the individual with the means to protect internationally recognized human
rights before the State (its bodies, agents and all those who act in its name), and
that it is a basic principle of the law of the international responsibility of the State,
embodied in international human rights law, that all States are internationally
responsible for any and every act or omission of any of their powers or bodies that
violates internationally enshrined rights.15
55.
Since the Court lacks jurisdiction to hear facts or acts that occurred before or
that began to be executed before June 6, 1995 (supra para. 26), the substantial
aspect of the dispute in this case before the Court is not whether the Serrano Cruz
sisters were disappeared by the State, but whether the domestic proceedings
ensured access to justice according to the standards of the American Convention.
15
Cf. Case of the Gómez Paquiyauri Brothers, supra note 10, paras. 71-73; Case of the 19
Tradesmen. Judgment of July 5, 2004. Series C No. 109, para. 181; and Case of Herrera Ulloa, supra note
4, para. 144.