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61(1) of the Convention, which mandates that the application be filed with the Secretariat of
the Court accompanied by ten (10) copies of the application.
The Commission, on filing the application against the State of Guatemala, in the early
hours of January 19, 1995, acted irregularly for the following reasons:
a)
The Commission transmitted the application by fax, and subsequently, (seven
days later) it sent the ten (10) copies of the application via “courier.” Article 26 of the Rules
of Procedure of the Court states that to refer a case, the application shall be filed with the
Secretariat of the Court in ten (10) copies in the working languages of the Court. The filing
of the application in one of the working languages does not suspend the prescribed
proceedings, but the translation from one language to the others should be submitted within
the following 45 days. That legal norm requires the material and physical filing of the
application accompanied at that time by ten (10) copies. In the present case the law does
not consider the possibility of filing the application by fax and much less the a posteriori
transmittal of the copies, since these are filed with the application in or rather by means
of the submission of the copies and without which the filing is not perfected. The previous
legal requisite only governs the extension of the period to which the filing of the application
in the case is subjected if the filing has been made in only one of the working languages.
The translation to the other languages can be made within the following forty-five days.
I also disagree with the legal reasoning of this judgment in drawing an analogy to
Article 27 of the Rules of Procedure of the Court. Article 27 establishes that if during a
preliminary review of the application the President finds that the basic requirements have
not been met, he shall request that the applicant correct them within a period of twenty
(20) days. The defects referred to, however, are the failure to observe the requirements
contained in sub-sections 1 to 5 of Article 26 of the Rules of Procedure. If the intent of the
law were to grant a longer period to send the copies it would have expressly stated as much
and granted forty-five (45) days (Article 26) and not twenty (20) as is provided in Article 27
in question. An analogous interpretation is, therefore, not possible in that respect; and
b)
The Commission also filed the application after the Court's office hours, as is
recorded on the fax, since the transmission began at 1:52 and terminated at 3:17 a.m.
(Court time) on January 19 of last year, which is in an untimely manner, particularly as
there is no legal provision within the rules governing the activity of the Court which
establishes every day and all hours as working times of the Court, or a provision that the
dispositions contained in the rules should be interpreted broadly, to bring about the
adequate protection of Human Rights (principle of broad interpretation).
Article 31(2) of the Rules of Procedure of the Court requires that preliminary
objections, be filed with the Secretariat of the Court by means of a brief in ten (10) copies,
etc. I cite this legal norm to demonstrate the congruence in the Rules of Procedure
regarding the treatment that should be given both to the filing of an application and to the
submission of objections, or to what is equivalent, the rights of the applicant and the rights
of the respondent, thereby ensuring respect for the equality of the parties.
The Court in the Cayara Case, paragraph 63, page 29, stated:
The Court must preserve a fair balance between the protection of human rights, which is the ultimate
purpose of the system, and the legal certainty and procedural equity that will ensure the stability and