DISSENTING OPINION OF THE JUDGE AD HOC EINER ELIAS BIEL MORALES
IN THE CASE OF REVERÓN TRUJILLO V. VENEZUELA
1.
In the judgment issued in the present case, the Inter-American Court of
Human Rights (hereinafter “the Court” or “the Tribunal”) dismissed the preliminary
objection filed by the State regarding lack of exhaustion of domestic remedies. I
differ from the majority’s decision and, therefore, with due respect for the opinion of
my colleagues, I allow myself to present the legal reasons for my dissent. This
difference with the majority prevents me from backing the Judgment in its totality.
However, I point out that, in the event that the jurisdiction of the Tribunal to hear
and issue a decision on the merits of the case is accepted, in general terms, I accept
the arguments offered upon deciding the merits of the matter, taking into account
that the Inter-American Court upon issuing its decision offers justice to that stated
by the victim.
The preliminary
remedies
objection
of
non-exhaustion
of
domestic
2.
The Preamble of the American Convention states that: “the essential rights of
man are not derived from one's being a national of a certain state, but are based
upon attributes of the human personality, and that they therefore justify
international protection in the form of a convention reinforcing or complementing the
protection provided by the domestic law of the American states” (highlight is not
from the original). From the aforementioned it can be clearly concluded that the
protection offered by the Inter-American System is exclusively complementary to the
domestic systems and in no way is it substitutive or the main system. In this sense,
it is important to point out that under the terms of the Convention the States Parties
undertake to “respect the rights and freedoms recognized herein and to ensure to all
persons subject to their jurisdiction the free and full exercise of those rights and
freedoms.” 1 Therefore, the responsibility and obligation to comply with the duties
contracted through the Convention falls upon national authorities, which reaffirms
the Court’s essentially supplementary nature. This means that only in those cases in
which a State has been allowed to repair by itself a violation according to the
Convention, and it has not done so, may the Inter-American System have
jurisdiction to hear those violations.
3.
This undeniable supplementary nature of the Inter-American System is
materialized mainly in the requirement to exhaust domestic remedies. Specifically,
from the start of its duties the Inter-American Court has established that: “[t]he rule
of prior exhaustion of domestic remedies allows the State to resolve the problem
under its internal law before being confronted with an international proceeding. This
is particularly true in the international jurisdiction of human rights, because the latter
“reinforces or complements” the domestic jurisdiction (American Convention,
Preamble).”2
1
2
Article 1(1) of the American Convention on Human Rights.
I/A Court H.R., Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988.
Series C No. 4, para. 61; I/A Court H.R., Case of Godínez Cruz v. Honduras. Merits. Judgment of January
20, 1989, Series C No. 5, para. 64, and I/A Court H.R., Case of Fairén Garbi and Solís Corrales v.
Honduras. Merits. Judgment of March 15, 1989. Series C No. 6, para. 85.
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