DISSENTING OPINION OF JUDGE A.A. CANÇADO-TRINDADE
1.
I regret that I cannot concur with the decision of the majority of the InterAmerican Court of Human Rights in this Judgment on Interpretation rendered in Case
of the Dismissed Congressional Employees (Aguado-Alfaro et al.) v. Peru. The Court
has declared the request for interpretation submitted by petitioners in the instant case
inadmissible in its entirety based on the Court's –incorrect, in my opinion– view that
such request does not raise any issue regarding the "meaning and scope" of its
previous Judgment (of Nov. 24, 2006) on merits and reparations in this Case of the
Dismissed Congressional Employees (Aguado-Alfaro et al.) v. Peru.
2.
However, paragraph 7(a) of said request1 raises a question which I find to be
most relevant, in connection with a matter I believe is directly related to the
Judgment on merits and reparations rendered in the case at hand and, in addition,
belongs –as I have argued within this Court– in the sphere of jus cogens: the issue of
the right to a fair trial, to cover both formal and substantive aspects thereof, leading
to the provision of justice by the judicial system, or justice being done. In stating the
reasons behind my firm dissent from the majority of the Court in this Judgment, I will
start by setting forth my preliminary considerations.
I.
Preliminary Considerations.
3.
At the very beginning of my Separate Opinion to the Judgment on merits and
reparations (of Nov. 24, 2006) rendered by the Inter-American Court of Human Rights
in this Case of the Dismissed Congressional Employees(Aguado-Alfaro et al.) v. Peru, I
stated that I had concurred on said Judgment "although I am not satisfied with the
decision in this case" (para. 1); right away, I added "some clarifications of a
conceptual nature" (paras. 1-7), acting under the rushing pressure of the time
limitations recently set on the Court’s decision-making process. I am not in the least
surprised by petitioners' filing of a request for Interpretation of Judgment (brief of
Feb. 5, 2007, pp. 1-2), even though they could have actually articulated it in a more
careful, refined fashion.
4.
Two further briefs were submitted to the Court in this proceeding for
Interpretation of Judgment: one from the Inter-American Commission on Human
Rights (of Aug. 1, 2007, pp. 1-3), wherein the Commission comes to the conclusion
that the request "does not amount to a request for interpretation proper,” without
providing, however, satisfactory reasons therefor or proving how such conclusion was
reached, and another one from the respondent State (of Jul. 31, 2007, pp. 1-3),
whereby the State did adequately provide the Court, using appropriate language, with
all such data as it deemed relevant for the Court’s deliberation on this request for
interpretation, without challenging the request itself.
5.
Given that, in my opinion, in this Judgment on Interpretation the InterAmerican Court has acted in an extremely summary and reluctant manner, failing to
provide clarifications on paragraph 7(a) of petitioners’ request, which paragraph is
concerned with an issue – access to justice – which I consider to be part of jus
cogens, I will add this Dissenting Opinion to said Judgment, setting forth my
reflections as the grounds supporting my position on the matter under discussion. My
reflections will revolve around four issues arising from this Case of the Dismissed
1
.
In paragraph 7(a) of the aforementioned request, petitioners do, in connection with
the fourth operative paragraph of the Judgment on merits and reparations rendered by the
Inter-American Court, express their "concern" over who will guarantee them a simple,
prompt and effective recourse (which requires that the State set up an independent and
impartial body): whether the State itself or the body to be created by it by virtue of the
aforementioned Judgment.