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for being the first case on freedom of thought and of expression resolved by the Court,
at the first working session held by it in the XXIst century, but also - and above all - for
having a bearing on a question which is common to so many Latin American and
Caribbean countries, and which touches on the foundations of the law on the
international responsibility of the State and the very origin of such responsibility. In the
light of the thoughts developed in this Concurring Opinion, may I conclude, in sum,
that:
first, the international responsibility of a State Party to a human rights
treaty arises at the moment of the occurrence of an international wrongful act - or
omission - (tempus commisi delicti), imputable to that State, in violation of the treaty
at issue;
second, any act or omission of the State, on the part of any of the
Powers - Executive, Legislative or Judicial - or agents of the State, irrespective of their
hierarchy, in breach of a human rights treaty, engages the international responsibility
of the State Party at issue;
third, the distribution of competences between the powers and organs of
the State, and the principle of the separation of powers, although of the greatest
relevance in the ambit of constitutional law, do not condition the determination of the
international responsibility of a State Party to a human rights treaty;
fourth, any norm of domestic law, irrespective of its rank (constitutional
or infraconstitutional), can, by its own existence and applicability, per se engage the
responsibility of a State Party to a human rights treaty;
fifth, a norm of domestic law which, by being in force, per se creates a
legal situation which affects the rights protected by a human rights treaty, constitutes,
in the context of a concrete case, a continuing violation of such treaty;
sixth, the existence of victims provides the decisive criterion for
distinguishing an examination in abstracto of a norm of domestic law, from a
determination of the incompatibility in concreto of such norm with the human rights
treaty at issue;
seventh, in the context of the international protection of human rights,
the rule of exhaustion of remedies of domestic law is endowed with a procedural rather
than substantive nature (as a condition of admissibility of a petition or complaint to be
resolved in limine litis), thus conditioning the implementation but not the birth of the
international responsibility of a State Party to a human rights treaty;
eighth, the rule of exhaustion of remedies of domestic law has a juridical
content of its own, which determines its extent (comprising the effective judicial
remedies), which is not extended to reforms of a constitutional or legislative order;
ninth, the substantive norms - pertaining to the protected rights - of a
human rights treaty are directly applicable in the domestic law of the States Parties to
such treaty;
tenth, there exists no legal obstacle or impossibility at all for the direct
application at domestic law level of the international norms of protection, but what is
rather required is the will (animus) of the public power (above all the Judiciary) to
apply them, amidst the understanding that one will thereby be giving concrete