¹ In its earlier case-law (e.g., eleventh Advisory Opinion, of 1990, and Judgments in the so-called Honduran cases, cit. infra), the Inter-American Court dwelt upon, e.g., the extent of the exceptions to the local remedies rule, going beyond the generally recognized exceptions of undue delays and denial of justice (e.g., in cases of indigence and of generalized fear in the legal community to represent the alleged victims legally), as well as upon the issues of the distribution or shining (between individual complainants and respondent states) of the burden of proof with regard to the exhaustion and the express or tacit waiver of the local remedies rule. The Court, furthermore, applied the criterion of the reasonable probability of success in the utilization of a remedy, and insisted on the need of effectiveness of local remedies; it rightly pointed out, e.g., that, in cases of disappearances of persons as a “state practice” or of negligence or tolerance on the part of public authorities, there is a presumption in favor of the victims, and there is no point in insisting on the application of the exhaustion rule (as there are no remedies to exhaust).

² Judgments of 1987 on Preliminary Objections, in the cases of Velasquez Rodriguez, paragraph 29; Godinez Cruz, paragraph 32; and Fairén Garbi and Solis Corrales, paragraph 34.

³ Judgment of December 4, 1991, Separate Opinion of Judge A. A. Caneado Trindade, arguing that the Court should leave admissibility decisions to the Commission, thus reducing the factual inequality between the parties, and that it should concentrate greater attention on substantive issues, so as to secure a more effective protection of human rights.

⁴ Dissenting Opinion of Judge A.A. Caneado Trindade, challenging the Court’s holding in the Honduran cases not to “restrict” the faculties of the Court, but rather to strengthen the present mechanism of protection of the American Convention as a whole.

⁵ Judgment of 1991 on Preliminary Objections, Gangaram Panday case, paragraphs 39-40; cf. Judgment on Preliminary Objections, Neira Alegría et al. case, concerning Peru, of the same year, paragraphs 30-31; and the Judgments cit. supra n. (2) on the three cases concerning Honduras, paragraphs 88-90 (Velasquez Rodriguez), 90-92 (Godinez Cruz), and 87-89 (Fairén Garbi and Solíš Corrales).

⁶ Inter-American Court of Human Rights, cases of Castillo Pâez versus Peru and Loayza Tamayo versus Peru, Judgments on Preliminary Objections of January 30 and 31, 1996, respectively, and Separate Opinions (in both) of Judge A.A. Caneado Trindade. Cf. texts of those Judgments (and Opinions), reproduced in: OAS, Annual Report of the Inter-American Court of Human Rights—1996, pp. 43-73.

⁷ Furthermore, the reopening before the Court of questions of admissibility already decided by the Commission generated the possibility of diverging or conflicting decisions on the matter by the two supervisory organs under the American Convention, thus fragmenting the unity inherent in a decision of admissibility. Instead of reviewing decisions on admissibility by the Commission, the Court should be able to concentrate more on the examination of questions of substance in order to fulfil more effectively its role of interpreting and applying the American Convention, determining the occurrence or not of violations of the Convention and its juridical consequences.

⁸ It is certain—it may be recalled—that the American Convention determines that only the States Parties and the Commission have the right “to submit a case” to the decision of the Court (Article 61 (1 )); but the Convention, for example, in providing for reparations, also refers to “the injured party” (Article 63(1)), i.e., the victims and not the Commission.

⁹ In the procedure before the Inter-American Court, for example, the legal representatives of the victims have been integrated to the delegation of the Commission with the euphemistic designation of “assistants” to this latter. This “pragmatic” solution counted on the endorsement, with all good intentions, of a joint meeting of the Inter-American Commission and Court, held in Miami in January 1994. Instead of solving the problem, it created, however, ambiguities which have persisted to date.

¹⁰ Cf. the previous Rules of Court of the Inter-American Court, of 1991, Articles 44(2) and 22(2), and cf. also Articles 34(1) and 43(1) and (2).

¹¹ Inter-American Court of Human Rights, Godinez Cruz and Velasquez Rodriguez cases (Compensatory Damages), Judgments of July 21, 1989.

^l2 Cf. the intervention of Judge A.A. Caneado Trindade, and the answers of Mr. Walter Márquez and of Ms. Ligia Bolívar, as representatives of the victims, in: Inter-American Court of Human Rights, Verbatim Records of the Public Hearing Held before the Court on 27 January 1996 on Reparations—El Amparo Case [original in Spanish], pp. 72-76 (mimeographed, internal circulation).

¹³ Cf. the two resolutions of the Court, of September 10, 1996, on the Velasquez Rodriguez and Godinez Cruz cases, respectively, in: Corte I.D.H., Informe Anual de la Corte Interamericana de Derechos Humanos 1996, pp. 207-13.

¹⁴ Strong arguments militate in favor of the recognition of such locus stanai of the alleged victims (or their legal representatives) in the proceedings before the Inter-American Court in cases already referred to it by the Commission. First, to the acknowledgment of rights, at national as well as international levels, corresponds the procedural capacity to vindicate or exercise them. The contraposition between the victims of violations and the respondent governments is of the very essence of the international contentieux of human rights. Such locus standi of the individuals concerned is the logical consequence, at the procedural level, of a system of protection purported to guarantee individual rights at the international level, as it is not reasonable to conceive rights without the procedural capacity to vindicate them. Moreover, the right of freedom of expression of the alleged victims is an element which integrates the due process of law, at both national and international levels. That locus standi injudicio contributes to instruct in a better way the case at issue. Furthermore, the right of access to international justice ought to be accompanied by the guarantee of the procedural equality of arms {égalité des armes) in the proceedings before the Court, essential to any jurisdictional system of protection of human rights. And, in cases of proved violations of human rights, it is the victims themselves—the true complainant party before the Court (or their relatives or heirs)—who receive the reparations and indemnities: as the victims mark their presence at the beginning and at the end of the process, there is no sense in denying them presence during the process.

^l5 Inter-American Court of Human Rights, case of Genie Lacayo versus Nicaragua, Order on appeal of revision of September 13, 1997, Dissenting Opinion of Judge A.A. Caneado Trindade, paragraphs 18-21 ; cf. case of Caballero Delgado and Santana versus Colombia, Judgment on reparations of January 29, 1997, Dissenting Opinion of Judge A.A. Caneado Trindade, paragraphs 2-3.

¹⁶ Resolutory point n. 4 of the Judgment.

¹⁷ In this most recent decision of March 8, 1998, the Court found Guatemala in breach of provisions of both the American Convention on Human Rights as well as the Inter-American Convention to Prevent and Punish Torture (cf. resolutory points 1-5 of the Judgment on the merits in Paniagua Morales and Others); this was the first time that the Court found violations of two regional human rights treaties (as the judicial supervisory organ of both of them).

¹⁸ It should not pass unnoticed that, in the earlier Honduran cases, the Court affirmed the duty of prevention, and clarified what it understood by such duty, but it did not develop its conceptual basis in the framework of the law of the international responsibility of the state. Likewise, the Court affirmed the duty of investigation and that of punishment, but, at the stage of reparations, it did not order the respondent State to prosecute and punish criminally those responsible for acts in violation of human rights. It was high time, thus, for the Court to move forward, to go beyond Velasquez Rodriguez and Godinez Cruz.

¹⁹ Cf. Inter-American Court of Human Rights, case of El Amparo, concerning Venezuela, Judgment on reparations of September 14, 1996, Dissenting Opinion of Judge A.A. Caneado Trindade; case of El Amparo, Order on interpretation of judgment of April 16, 1997, Dissenting Opinion of Judge A.A. Caneado Trindade; Genie Lacayo versus Nicaragua, Order on appeal of revision of September 13, 1997, Dissenting Opinion of Judge A.A. Caneado Trindade; Caballero Delgado and Santana versus Colombia, Judgment on reparations of January 29, 1997, Dissenting Opinion of Judge A.A. Caneado Trindade.

²⁰ Inter-American Court of Human Rights, case of El Amparo, Order on interpretation of judgment of April 16, 1997, Dissenting Opinion of Judge A.A. Caneado Trindade, paras. 13-14.

²¹ Id. para. 30.

²² Loayza v. Peru (Judgment), Resolutory point n. 3, and Joint Concurring Opinion of Judges Caneado Trindade and Jackman.

²³ Id. para. 68.

²⁴ Id. Resolutory point n. 5.

²⁵ Suárez Rosero v. Ecuador (Judgment), paras. 64-66, resolutory point n. 4.

²⁶ Id. paras. 75, 78 and 83, and resolutory point n. 2.

²⁷ Id. paras. 97-98, and resolutory point n. 5.

²⁸ Id. para. 99.

²⁹ Tribunal Constitucional/Secretaria General, cases ns. 174-92, 106-94 and 61-95 (joined), Resolución n. 119-1-97, Quito, December 1997, pp. 1-5 (internal circulation), esp. p. 5, for reference to the Judgment of the Inter-American Court of November 12, 1997 in the Suárez Rosero case.

³⁰ Inter-American Court of Human Rights, case of Caballero Delgado and Santana versus Colombia, Judgment on reparations of January 29, 1997, Dissenting Opinion of Judge A.A. Caneado Trindade, paragraph 19.

³¹ Id. para. 9.

³² Id. para. 10.

³³ The operation of the international mechanisms of protection cannot be prescinded from the adoption and improvement of national measures of implementation, as on these latter depends to a large extent the future evolution not only of the Inter-American system but of the international protection itself of human rights. Emphasis on such national measures must, however, be laid without prejudice to the preservation of the international standards of protection.

³⁴ Inter-American Court of Human Rights, Genie Lacayo versus Nicaragua case, Order on appeal of revision of September 13, 1997, Dissenting Opinion of Judge A.A. Caneado Trindade, paragraph 11.

³⁵ Id. para. 25 n. 21.