SEPARATE OPINION OF JUDGE AD HOC ROBERTO DE FIGUEIREDO CALDAS IN RELATION TO THE JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS IN THE CASE OF ESCHER ET AL. V. BRAZIL OF JULY 6, 2009 1. I submit this separate opinion, which concurs on the whole with the Court’s conclusions, for two main reasons. The first is to place on record my understanding of some specific issues examined by the judgment with which I agree. The second is to express a contrary – dissenting – opinion regarding the Court’s conclusion that the brief with pleadings, motions and evidence of the victims’ representatives was untimely, even though it did not apply the effects deriving from this declaration, but rather received the brief as timely, and as entirely useful. 2. Regarding the legal principles debated, I fully agree with the terms of the judgment, which was drawn up in a collegial manner. I. Timeliness – a time limit that expires on a non-working day is extended to the next working day 3. Owing to a delay of one day, the Court considered that the presentation of the brief with pleadings, motions and evidence by the victims’ representatives on April 7, 2008 (Monday), was untimely. This was because the Secretariat of the Court established that the original brief with the application and its attachments had been received by the representative of Justiça Global on February 6, 2008, while the two-month period established in Article 36 of the Court’s Rules of Procedure 1 expired on April 6, 2008 (Sunday). 4. The Court’s Rules of Procedure are silent as regards the way in which time limits should be calculated. 5. Since there is also no provision for calculating working and non-working days in its Rules of Procedure – and because Article 2(21) of the Rules of Procedure defines “month” as “calendar month” 2 – the Court concluded that the presentation of the brief with pleadings, motions and evidence was untimely. Nevertheless, the Court admitted it, based on generosity, and this could lead to questions, given the clarity of the provision drawn up by the Court itself, which states that this time limit cannot be extended. However, the brief was admitted in light of the fact that the Court’s proceedings are not subject to the same judicial formalities as the domestic proceedings of the countries, and also because the Court considered that the delay of only one day was reasonable, and had not affected either the legal certainty or the procedural balance of the parties. 6. To the contrary, I consider that the brief was entirely timely. 7. To clarify: even though most members of the Court have understood that the brief was untimely, it accepted it as timely for all legal purposes, which, ultimately, converged with my understanding. 8. However, I feel the need to record my reasoning so that the issue can be debated in a future case and that case law will not remain silent in this regard, concessa venia, since this would be the case if the presentation of the brief with pleadings, motions and evidence of the representatives de las victims, or of any parties in a similar situation, should be considered timely. 1 Article 36. Written Brief Containing Pleadings, Motions and Evidence 1. When the application has been notified to the alleged victim, his next of kin or his duly accredited representatives, they shall have a period of 2 months, which may not be extended, to present autonomously to the Court their pleadings, motions and evidence. 2 Article 2. Definitions For the purposes of these Rules of Procedure: (...) 21. the term “month” shall be understood to be a calendar month.