14
Convention – the Inter-American Court and Commission – that acted in the most hasty and
unsatisfactory fashion throughout this legal Interpretation of Judgment proceeding.
49.
I absolutely cannot accept, much less so when it comes to a matter of peremptory law
(such as access to justice), that judicial reasoning continue to find inspiration in the discredited
doctrine of obligations of means or conduct. Conventional obligations are, much to the
contrary, obligations of result. Nor can I accept that the Court will excuse itself from fulfilling
its duty to control conventionality in this Interpretation of Judgment proceeding, finding it
enough to leave an examination of potential difficulties that it already seems to anticipate as
possible to a later stage of supervision of compliance with the Judgment.45
50.
Paragraph 7(a) of the request for Interpretation of Judgment filed by petitioners in the
instant Case of the Dismissed Congressional Employees is concerned with an issue which this
very Court recently held as being a part of jus cogens. As already explained, in Opinions
successively issued within this Court I have strived to achieve – successfully, I now believe –
the extension of the material scope of jus cogens (cf. supra). Unfortunately, in this Judgment
on Interpretation, the Court has refrained from upholding its most perceptive decisions on the
right to a fair trial.
51.
The Court even deviated from its own Judgment on merits and reparations (of Nov. 24,
2006) rendered in the instant Case of the Dismissed Congressional Employees, in which it had
denied the so-called validity of any normative limitation to a "genuine and effective access to
justice," precisely because, in the light of Articles 8 and 25 (viewed together), in relation to
Articles 1(1) and 2 of the Convention, access to justice "cannot be arbitrarily restricted or
annulled" (para. 119). Such statement by the Court relied on its own obiter dictum in the
earlier Judgment rendered in the Case of Goiburú et al. v. Paraguay (cf. supra), in which the
Court had approached access to justice as "a peremptory norm of international law" (para.
131), i.e. as being a part of jus cogens.
52.
If this is so, then why did the Court choose the easiest, and also untenable, route of
declaring the request for interpretation entirely inadmissible in this proceeding, thereby failing
to reaffirm and strengthen its best line of decisions regarding the issue raised in paragraph
7(a) of said request? Basically, this decision by the Court seems to suggest that neither in life
nor in the world of the application of the Law is it permissible to expect to have full justice or
even the slightest sign of coherence.
53.
In its previous Judgment on merits and reparations in the instant Case of the Dismissed
Congressional Employees, the Court expressly noted that
“this case took place within the framework of practical and normative
impediments to a real access to justice and a general situation of absence of guarantees
and ineffectiveness of the judicial institutions to deal with facts such as those of the
instant case. (...)
(...) this case occurred in the context of a situation of legal uncertainty promoted
by laws that limited access to justice in relation to the evaluation procedure and eventual
dismissal of the alleged victims, so that they did not have certainty about the proceedings
they could or should resort to in order to claim the rights they considered had been
violated. (...)" (paras. 129 and 146).
54.
This being so, I was somewhat surprised when I realized that, in their oral arguments
submitted at the public hearing of Jun. 27, 2006, held in the city of San Salvador before the
45
.
As inferred from para. 19 of this Judgment on Interpretation.