35
127. Moreover, the State rejected the arguments of the representatives and pointed
out that in condemnation proceedings, it is inevitable to include or exclude pieces of land
from the chosen area, due to technical reasons. It further argued that the Metropolitan
Park had marked the territory out " prior to the alleged discriminatory act […] alleged by
the representatives [...]", therefore there is no well-grounded reasons “[…] to believe
that Mrs. Salvador Chiriboga was adversely affected or differently treated.”
128. The Court has determined that the alleged victims, his next-of-kin or his
representatives may invoke rights other than those asserted in the petition filed before
the Commission, on the basis of the facts described therein.122 In relation to this last
aspect, the Court has established that it is not admissible to allege new matters of facts
different from those asserted in the application, which does not preclude the fact of
stating those facts that allow explaining, clarifying or dismissing those that have been
stated in the application or, else, filing the answer to the cause of action of the plaintiff.
123
. Furthermore, the Court has already stated that the exception to this rule applies in
the case of supervening facts, that is to say, facts that arise once the briefs to the
proceedings have been submitted (complaint; brief of requests, arguments and evidence;
answer to the complaint.)124
129. Taking into account the above paragraph and that the representatives raised an
issue of law and not of fact, the Tribunal, when analyzing the alleged violation of article
24 of the American Convention, finds that there is no enough evidentiary elements to
determine whether the State, by not granting the authorization to develop a land of
property to the alleged victim, has violated such provision. As to the arguments
submitted by the representatives related to the fact that the State did not allow the
alleged victim access to a judicial procedure within a reasonable time, this issue was
analyzed in relation to the right to judicial guarantees and protection enshrined in Articles
8(1) and 25(1) of the Convention (supra para. 48 to 118). Therefore, this Court
considers that, in the instant case, the violation of Article 24 of the American Convention
by the State has not been proved.
ARTICLE
VIII
29 (RESTRICTIONS REGARDING INTERPRETATION ),125
IN RELATION TO
122
Cf. Case of Acevedo Jaramillo et al. Judgment of February 7, 2006. Series C No. 144, para. 280 and
Case of López Álvarez, supra note 51, para. 145; and Case of Gómez Palomino V. Perú. Merits, Reparations and
Costs.. Judgment of November 22, 2005. Series C N°. 136, para. 59.
123
Cf. Case of the “Five Pensioners", supra note 49, para. 153; Case of Bueno Alves V. Argentina. Merits,
Reparations and Costs. Judgment of May 11, 2007. Series C No. 164, para. 121; and Case of the Saramaka
People, supra note 21, para. 13.
124
Cf. Case of Miguel Castro-Castro Prison, supra note 53, para. 162; and Case of the Ituango Massacres
v. Colombia. Preliminary Objection, Merits, Reparations and Costs. Judgment of July 1, 2006. Series C Nº. 148,
para. 89, and Case of the Sawhoyamaxa Indigenous Community. Judgment of March 29, 2006. Series C No.
146, para. 68.
125
In its pertinent part, Article 29 (Restriction regarding Interpretation) provides for:
No provision of this Convention shall be interpreted as:
a) permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and
freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein;;
b) restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State
Party or by virtue of another convention to which one of the said states is a party;
c) precluding other rights or guarantees that are inherent in the human personality or derived from
representative democracy as a form of government; or
d) excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other
international acts of the same nature may have.
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