Benjamin et al. Case, Judgment of September 1, 2001, Inter-Am Ct. H.R. (Ser. C) No. 81 (2001).
In the Benjamin et al. case,
the
Inter-American Court of Human Rights (hereinafter “the Inter-American Court”,
“the Court” or “the Tribunal”), composed of the following judges:
Antônio A. Cançado Trindade,
President;
Máximo Pacheco-Gómez,
Vice-President;
Hernán Salgado-Pesantes, Judge;
Oliver Jackman, Judge;
Alirio Abreu-Burelli, Judge;
Sergio García-Ramírez, Judge; and
Carlos Vicente de Roux-Rengifo,
Judge;
also
present:
Manuel E. Ventura-Robles, Secretary,
and
Pablo Saavedra-Alessandri, Deputy
Secretary;
pursuant
to Article 36 of its Rules of Procedure[1]
(hereinafter “the Rules of Procedure”), delivers the following judgment on the
preliminary objection filed by the State of Trinidad and Tobago (hereinafter
“the State” or “Trinidad and Tobago”).
I
INTRODUCTION
OF THE CASE
1) The present case was submitted to the
Court by the Inter-American Commission on Human Rights (hereinafter “the
Inter-American Commission” or “the Commission”) on October 5, 2000. The Commission’s application originates from
the petitions numbered 12,148 (Peter Benjamin), 12,149 (Krishendath Seepersad),
12,151 (Allan Phillip), 12,152 (Narine Sooklal), 12,153 (Amir Mowlah), 12,156
(Mervyn Parris) and 12,157 (Francis Mansingh), received by its Secretariat
between January and May of 1999.
II
FACTS SET
FORTH IN THE APPLICATION
2) The Inter-American Commission set forth
in its application the facts on which it is based. In the following paragraphs, the Court summarizes the facts and
claims relevant to the consideration of the preliminary objection:
The
State of Trinidad and Tobago is responsible for the violation of the following
articles of the American Convention on Human Rights (hereinafter “the American
Convention” or “the Convention”) (infra
14):
4(1),
5(1), 5(2) and 8(1), for sentencing Peter Benjamin, Krishendath Seepersad,
Allan Phillip, Narine Sooklal, Amir Mowlah, Mervyn Parris and Francis Mansingh
(hereinafter “the alleged victims”) to a “mandatory death penalty”;
4(6),
for failing to provide these seven alleged victims with an effective right to
apply for amnesty, pardon, or commutation of sentence;
7(5)
and 8(1), for the delay in the criminal process of six of the alleged victims;
25
and 2, for failing to adopt legislative or other measures necessary to give
effect to the right of six of the alleged victims to be tried within a
reasonable time under Articles 7(5) and 8(1) of the Convention;
5(1)
and 5(2), for reason of five of the alleged victims’ conditions of detention;
5(4),
for failing to segregate from convicted persons, save in exceptional
circumstances, in the case of one of the alleged victims;
5(6),
for failing to have as an essential aim of his deprivation of liberty his
reform and social readaptation in the case of one of the alleged victims;
8(1),
for failing to provide one of the alleged victims with a mechanism to be
re-evaluated in light of potentially exculpatory evidence;
8(2)(d),
for reason of the delay in permitting the victim to contact an attorney
following his arrest in the case of one of the alleged victims;
8
and 25, for failing to make effective legal aid effectively available to two of
the alleged victims to pursue constitutional motions in the domestic courts in
connection with their criminal proceedings;
all
in relation to Article 1(1) of the Convention.
The
Inter-American Commission supports its statements, inter alia, with the following facts:
a)
On October 27, 1997,
Mr. Peter Benjamin (case 12,148) was convicted and sentenced to a “mandatory
death penalty” by hanging for the murder of Kanhai Deodath;
b)
On May 29, 1998, Mr.
Krishendath Seepersad (case 12,149) was convicted and sentenced to a “mandatory
death penalty” by hanging for the murder of Shazard Ghany;
c)
On November 17,
1995, Mr. Allan Phillip (case 12,151) was convicted and sentenced to a
“mandatory death penalty” by hanging for the murder of Brian Barrow;
d)
On May 24, 1996, Mr.
Narine Sooklal (case 12,152) was convicted and sentenced to a “mandatory death
penalty” by hanging for the murder of Mobina Ali;
e)
On October 27, 1997,
Mr. Amir Mowlah (case 12,153) was convicted and sentenced to a “mandatory death
penalty” by hanging for the murder of Shaffina Mowlah;
f)
On February 17,
1995, Mr. Mervyn Parris (case 12,156) was convicted and sentenced to a
“mandatory death penalty” by hanging for the murder of Anthony Gittens;
g)
On May 24, 1996, Mr.
Francis Mansingh (case 12,157) was convicted and sentenced to a “mandatory
death penalty” by hanging for the murder of Mobina Ali;
h)
In all seven cases,
the alleged victims were tried by Trinidad and Tobago for the crime of murder,
were convicted, and sentenced to death by hanging, under the Offences Against the Person Act. Once an
offender is found guilty of murder, section 4 of the said Act “mandates the
death penalty”, establishing that “all persons sentenced for murder will suffer
death”;
i)
The Offences Against the Person Act provides
a definition of “murder”, permits a jury to consider certain circumstances of a
killing in determining whether the offender ought to be found guilty of murder
or of a lesser offence, mandates the imposition of the death penalty on an
offender found guilty of murder, but does not permit a judge or jury to
consider the personal circumstances of an offender or his or her offence;
j)
Domestic judicial
review proceedings in respect of a criminal conviction may take two forms: a
criminal appeal against conviction or a constitutional motion under Section 14
of the Constitution. Article 6 of the Trinidad and Tobago Constitution shields
from challenge, under sections 4 and 5 of the Constitution, any claim that a
law or any action taken under the authority of any law existing in 1976, the
date of commencement of the Constitution, violates the fundamental rights under
sections 4 and 5 of the Constitution. This includes any argument that the
executive act of carrying out a death sentence pronounced by a court under a
law that was in force in 1976 abrogates, abridges or infringes in any way a
condemned individual’s Constitutional rights or freedoms;
k)
In addition, section
4 of the Trinidad and Tobago Constitution only guarantees the right to a fair
trial, and not a speedy trial, within a reasonable time. Consequently, a
lengthy pre-trial delay in a criminal case cannot, in and of itself, raise an
issue under the Trinidad and Tobago Constitution, rather, it is simply a factor
for the trial judge to take into account when assessing the overall question of
fairness;
l)
The Constitution of
Trinidad and Tobago provides for an Advisory Committee on the Power of Pardon,
which is charged with considering and making recommendations to the Minister of
National Security as to whether an offender sentenced to death ought to benefit
from the President’s discretionary power of pardon under the said
Constitution. No criteria are
prescribed in law for the exercise of the Committee’s functions or the
President’s discretion, and the offender has no legal right to make submissions
to the Committee to present, receive or challenge evidence the Committee
chooses to take into account. The exercise of the power of pardon is an act of
clemency that is not matter of legal right, and therefore not subject to judicial
review.
III
PROCEEDING BEFORE THE
COMMISSION
3) Between January and May 1999, the
Commission received seven petitions from various British law firms (hereinafter
“the petitioners”) on behalf of seven alleged victims whose rights were alleged
to have been violated by the State. The
Commission began the proceedings of the cases that are the subject of this
application on various dates between May and June of 1999, subsequently it
opened cases 12,148; 12,149; 12,151; 12,152; 12,153; 12,156 and 12,157, and
transmitted the pertinent parts of the petitions to the State, and requested a
reply.
4) The Commission received responses from
the State in the cases 12,149 (Krishendath Seepersad) and 12,151 (Allan
Phillip) on August 6 and 18, 1999,
respectively; and in the remaining five cases (12,148; 12,152; 12,153; 12,156
and 12,157) the State did not provide the Commission with any observation
respecting the petitions. In the two
cases in which the State delivered a response, the Commission decided to transmit
the pertinent parts to the petitioners pursuant to Article 34(7) of its Rules
of Procedure and requested their comments.
5) In case 12,149 (Krishendath Seepersad),
the petitioners delivered comments on the State’s response. Further, in case 12,151 (Allan Phillip), the
Commission received supplementary materials from the petitioners. The Commission transmitted the
communications to the State, and requested a reply. The State did not deliver a response to these supplementary
materials.
6)
On June 13, 2000, the Commission
adopted Report No. 53/00, in accordance with Article 50 of the Convention, and
transmitted it to the State on July 5 of the same year. In the report, the Commission determined the
admissibility and merits of the seven cases and, in the operative part of the
Report, recommended that the State[2]:
1.
Grant the victims in Cases Nos. 12,149 (Krishendath
Seepersad), 12,151 (Allan Phillip), 12,152 (Narine Sooklal), 12,153 (Amir
Mowlah), 12,156 (Mervyn Parris), and 12,157 (Francis Mansingh) an effective
remedy which includes commutation of sentence and compensation;
2.
Grant the victim in Case No. 12,148 (Peter Benjamin) an
effective remedy which includes a re-trial in accordance with the due process
protections prescribed under Article 8 of the Convention or, where a re-trial
in compliance with this protection is not possible, the victim’s release;
3.
Adopt such legislative or other measures as may be
necessary to ensure that the death penalty is imposed in compliance with the
rights and freedoms guaranteed under the Convention, including and in
particular Articles 4, 5 and 8;
4.
Adopt such legislative or other measures as may be
necessary to ensure that the right under Article 4(6) of the Convention to
apply for amnesty, pardon or commutation of sentence is given effect in
Trinidad and Tobago;
5.
Adopt such legislative or other measures as may be
necessary to ensure that the conditions of detention in which the victims in
these cases are held comply with the standards of humane treatment mandated by
Article 5 of the Convention;
6.
Adopt such legislative or other measures as may be
necessary to ensure that the right to trial within a reasonable time and to a
fair trial under Articles 7(5) and 8(1) of the Convention is given effect in
Trinidad and Tobago, including effective recourse to a competent court or
tribunal for protection against acts that violate those rights;
7.
Adopt such legislative or other measures as may be
necessary to ensure that the right to a fair hearing under Article 8(1) of the
Convention and the right to judicial protection under Article 25 of the
Convention are given effect in Trinidad and Tobago, in relation to recourse to
Constitutional Motions.
7) The
State did not provide the Commission with any response or information on the
measures taken to comply with its recommendations.
8) On October 4, 2000, the Inter-American
Commission, pursuant to Article 51 of the American Convention, decided to
submit the case to the Court.
IV
PROVISIONAL
MEASURES[3]
9) On May 25, 1999, prior to the
submission of the application, the Commission requested that the Court expand
the provisional measures in the matter of James
et al. to include in the said provisional measures Messrs. Peter Benjamin,
Krishendath Seepersad, Allan Phillip, Narine Sooklal, and Amir Mowlah, among
others[4].
The Commission considered that the circumstances were similar to those of the
other inmates to whom the existing Order for provisional measures in Trinidad
and Tobago applied, because the executions of these persons were imminent and
they were therefore vulnerable to irreparable harm.
10) On May 27, 1999, the Court ordered the
State, inter alia, to take all
measures necessary to preserve the lives of Peter Benjamin, Krishendath
Seepersad, Allan Phillip, Narine Sooklal, and Amir Mowlah, so as not to hinder
the processing of their cases before the Inter-American System.
11) On June 18, 1999, the Commission
transmitted to the Court a request to further expand the provisional measures
issued by the Court in the matter James
et al. to include Messrs. Mervyn Parris and Francis Mansingh. As in the
abovementioned cases (supra 9), the
Commission considered that the circumstances were similar to those of the other
inmates to whom the existing Order for provisional measures applied in Trinidad
and Tobago, because the executions of the said persons were imminent and they
were therefore vulnerable to irreparable harm.
12) On June 19, 1999, the President of the
Court (hereinafter “the President”) decided to expand the provisional measures
in the matter of James et al. to
include Messrs. Mervyn Parris and Francis Mansingh; and requested Trinidad and
Tobago to take all measures necessary to preserve their lives, so that the
Court could examine the pertinence of the Commission’s request. On September
25, 1999, the Court ratified the President’s Order of June 19, 1999 in relation
to Messrs. Mervyn Parris and Francis Mansingh.
13)
As of this date, the State has presented the relevant reports with respect to
the situation of the persons protected, and the Commission has delivered its
observations on the State’s reports.
V
PROCEEDING
BEFORE THE COURT
14) On October 5, 2000, the Inter-American
Commission filed its application in the following terms:
The
Inter-American Commission on Human Rights respectfully petitions the Honorable
Inter-American Court of Human Rights to declare violations of the Convention by
the State, establish reparations for those violations, and determine costs and
expenses to be paid to the representatives of the victims.
A.
Declarations
of violations
The
Inter-American Commission on Human Rights respectfully petitions the Honorable
Inter-American Court of Human Rights to:
Find that
the Republic of Trinidad and Tobago is responsible for:
1) violating the rights of the victims
in Cases Nos. 12,148 (Peter Benjamin), 12,149 (Krishendath Seepersad), 12,151
(Allan Phillip), 12,152 (Narine Sooklal), 12,153 (Amir Mowlah), 12,156 (Mervyn
Parris) and 12,157 (Francis Mansingh) under Articles 4(1), 5(1), 5(2) and 8(1)
of the American Convention, by sentencing these victims to a mandatory death
penalty.
2) violating the rights of the victims
in Cases Nos. 12,148 (Peter Benjamin), 12,149 (Krishendath Seepersad), 12,151
(Allan Phillip), 12,152 (Narine Sooklal), 12,153 (Amir Mowlah), 12,156 (Mervyn
Parris) and 12,157 (Francis Mansingh) under Article 4(6) of the Convention, in
conjunction with the violation of Article 1(1) of the Convention, by failing to
provide these victims with an effective right to apply for amnesty, pardon or
commutation of sentence.
3) violating the rights of the victims
in Cases Nos. 12,149 (Krishendath Seepersad), 12,151 (Allan Phillip), 12,152
(Narine Sooklal), 12,153 (Amir Mowlah), 12,156 (Mervyn Parris) and 12,157
(Francis Mansingh) to be tried within a reasonable time and to a fair trial
under Articles 7(5) and 8(1) of the Convention, in conjunction with the
violation of Article 1(1) of the Convention, by reason of the delays in the
victims’ criminal proceedings.
4) violating
the rights of the victims in Cases Nos. 12,149 (Krishendath Seepersad), 12,151
(Allan Phillip), 12,152 (Narine Sooklal), 12,153 (Amir Mowlah), 12,156 (Mervyn
Parris) and 12,157 (Francis Mansingh) under Article 25 of the Convention,
together with the State’s obligations under Article 2 of the Convention, all in
conjunction with the violation of Article 1(1) of the Convention, by failing to
adopt legislative or other measures necessary to give effect to the right to be
tried within a reasonable time under Articles 7(5) and 8(1) of the Convention.
5) violating the rights of the victims
in Cases Nos. 12,149 (Krishendath Seepersad), 12,152 (Narine Sooklal), 12,153
(Amir Mowlah), 12,156 (Mervyn Parris) and 12,157 (Francis Mansingh) under
Articles 5(1) and 5(2) of the Convention, in conjunction with the violation of
Article 1(1) of the Convention, by reason of the victims’ conditions of
detention.
6) violating the right of the victim
in Case No. 12,157 (Francis Mansingh) under Article 5(4) of the Convention, in
conjunction with the violation of Article 1(1) of the Convention, to be
segregated from convicted persons, save in exceptional circumstances.
7) violating the right of the victim
in Case No. 12,149 (Krishendath Seepersad) under Article 5(6) of the
Convention, in conjunction with the violation of Article 1(1) of the
Convention, to have as an essential aim of his deprivation his reform and
social readaptation.
8) violating the right of the victim
in Case No. 12,148 (Peter Benjamin) under Article 8(1) of the Convention, in conjunction
with the violation of Article 1(1) of the Convention, by failing to provide the
victim with a mechanism for the victim’s conviction to be reevaluated in the
light of potentially exculpatory evidence.
9) violating the rights of the victim
in Case No. 12,152 (Narine Sookal) under Article 8(2)(d) of the Convention, in
conjunction with the violation of Article 1(1) of the Convention, by reason of
the delay in permitting the victim to contact an attorney following his arrest.
10) violating the rights of the victims
in Cases Nos. 12,153 (Amir Mowlah) and 12,156 (Mervyn Parris) under Articles 8
and 25 of the Convention, in conjunction with the violation of Article 1(1) of
the Convention, by failing to make effective legal aid available to these victims
to pursue constitutional motions in the domestic courts in connection with
their criminal proceedings.
B.
Reparations
The
Inter-American Commission on Human Rights respectfully petitions the Honorable
Inter-American Court of Human Rights to:
Direct that
the Republic of Trinidad and Tobago grant the victims in Cases Nos. 12,149
(Krishendath Seepersad), 12,151 (Alan Phillip), 12,152 (Narine Sooklal), 12,153
(Amir Mowlah), 12,156 (Mervyn Parris) and 12,157 (Francis Mansingh) an
effective remedy which includes commutation of sentence and compensation;
Direct that
the Republic of Trinidad and Tobago grant the victim in Case No. 12,148 (Peter
Benjamin) an effective remedy which includes a re-trial in accordance with the
due process protections prescribed under Article 8 of the Convention or, where
a re-trial in compliance with these protections is not possible, the victim’s
release;
Direct that
the Republic of Trinidad and Tobago adopt such legislative or other measures as
may be necessary to ensure that the death penalty is imposed in compliance with
the rights and freedoms guaranteed under the Convention, including and in
particular Articles 4, 5 and 8;
Direct that
the Republic of Trinidad and Tobago adopt such legislative or other measures as
may be necessary to ensure that the right under Article 4(6) of the Convention
to apply for amnesty, pardon, or commutation of sentence is given effect in
Trinidad and Tobago;
Direct that
the Republic of Trinidad and Tobago adopt such legislative or other measures as
may be necessary to ensure that the conditions of detention in which the
victims in these cases are held comply with the standards of humane treatment
mandated by Article 5 of the Convention;
Direct that
the Republic of Trinidad and Tobago adopt such legislative or other measures as
may be necessary to ensure that the right to trial within a reasonable time and
to a fair trial under Articles 7(5) and 8(1) of the Convention is given effect
in Trinidad and Tobago, including effective recourse to a competent court or
tribunal for protection against acts that violate those rights;
Direct that
the Republic of Trinidad and Tobago adopt such legislative or other measures as
may be necessary to ensure that the right to a fair hearing under Article 8(1)
of the Convention and the right to judicial protection under Article 25 of the
Convention are given effect in Trinidad and Tobago in relation to recourse to
constitutional motions.
C.
Compensation
The
Commission has requested that the Honorable Court require the State of Trinidad
and Tobago to remedy the consequences of the violations which are the subject
of this application.
Article
63(1) of the American Convention provides:
If the Court finds that there has been a violation of a
right or freedom protected by this Convention, the Court shall rule that the
injured party be ensured the enjoyment of his right or freedom that was
violated. It shall also rule, if
appropriate, that the consequences of the measure or situation that constituted
the breach of such right or freedom be remedied and that fair compensation be
paid to the injured party.
This Honorable Court has stated that Article 63(1) of the
Convention codifies a rule of customary law and constitutes one of the
fundamental principles of customary law (Aloeboetoe
Case, Judgment of September 10, 1993, para. 43). The obligation to repair a breach may give rise to a number of
measures to remedy the consequences.
The State must, to the extent possible, reestablish the statu quo ante, which in the present
case could be achieved by commuting the complainant’s death sentence and
adjusting the domestic law of Trinidad and Tobago accordingly. Where reestablishing the statu quo ante is no longer possible,
the consequences must be remedied through other means. The Commission therefore seeks to obtain a
decision of the Court as to the compensation owing to the victim as a result of
the State’s violation of his rights under the Convention.
D.
Costs
and expenses
The
Commission seeks a determination from the Court respecting the costs and
expenses incurred by the representatives of the victims during the processing
of the case before the domestic courts and the organs of the Inter-American
system.
15) The
Commission appointed Messrs. Robert K. Goldman and Nicholas Blake as delegates,
and Messrs. David J. Padilla and Brian D. Tittemore as legal advisors. The Commission also designated Julian
Knowles, Ivan Krolick, Keir Starmer, Saul Lehrfreund, Belinda Moffat, Yasmin
Waljee, and James Oury as assistants.
16) On
October 19, 2000, the Secretariat of the Court (hereinafter “the Secretariat”),
following the preliminary examination of the application by the President of
the Court, notified the State of the application and its annexes. On the same
date, the Secretariat, following instructions of the President, informed the
State of its right to designate an ad hoc
judge pursuant to Articles 18 of its Rules of Procedure and 10(3) of the
Statute of the Court (hereinafter “the Statute”).
17) On
December 9, 2000, Trinidad and Tobago submitted a preliminary objection to
compulsory jurisdiction of the Court in this case.
18) On
December 11, 2000, the Secretariat acknowledged receipt of the State’s
communication of December 9 of the same year, transmitted to the Commission
said communication and informed the parties that the President of the Court,
following the precedent of the Constantine
et al. case[5], decided to
waive the convening of a special hearing on the preliminary objection in the
present case.
19) On
January 11, 2001, the Commission replied to the State’s brief on preliminary
objection, which reply was transmitted to Trinidad and Tobago on January 15, of
the same year.
20) On May 7, 2001, the Secretariat received
from the Commission copies of two decisions pertinent to cases on the
imposition of the “mandatory death penalty”, issued by the United Nations Human
Rights Committee and the Court of Appeals for the Eastern Caribbean. These decisions were transmitted to the
State on May 15, 2001.
VI
JURISDICTION
21) Trinidad and Tobago deposited its
instrument of ratification to the American Convention on May 28, 1991. On the same date, the State recognized the
compulsory jurisdiction of the Court.
22) On
May 26, 1998, Trinidad and Tobago denounced the Convention and pursuant to
Article 78 of the same, this denunciation took effect one year later, on May
26, 1999. The facts, to which the
instant case refers, occurred prior to the effective date of the State’s
denunciation. Consequently, the Court
has jurisdiction, under the terms of Articles 78(2) and 62(3) of the
Convention, to entertain the present case and render a judgment on the State’s
preliminary objection.
VII
PRELIMINARY OBJECTION:
FAILURE OF THE COMMISSION TO
REFER THE CASE TO THE COURT AND OF THE COURT TO “ACCEPT JURISDICTION” WITHIN
THE STIPULATED PERIOD AND LACK OF JURISDICTION
23) In
its preliminary objection, Trinidad and Tobago sustained that the
Inter-American Court does not have jurisdiction to hear the case in light of
three main arguments:
I) The Commission did not refer the
case to the Court and the Court did not accept jurisdiction of the case within
the three-month period stipulated under Article 51 of the American Convention
on Human Rights.
II) The State’s second reservation
precludes any jurisdiction of the Court in this case.
III) Alternatively, the State has never
recognized the jurisdiction of the Court.
24) The
Court will now consider the arguments presented by the State in the case sub judice.
A. FAILURE OF THE COMMISSION TO REFER THE CASE TO THE COURT AND
OF THE COURT TO “ACCEPT JURISDICTION” WITHIN THE STIPULATED PERIOD
Arguments of the State
25) The
State alleged that Article 51(1) of the Convention requires that, for the Court
to have jurisdiction, not only must the Commission’s Report have been submitted
to the Court within three months of the date of transmittal of the said Report
to the State concerned, but that the Court must also have accepted jurisdiction
in respect of the matter within the three month period.
26) In this regard, the State noted that
Article 51(1) of the Convention provides that
[i]f,
within a period of three months from the date of the transmittal of the report
of the Commission to the states concerned, the matter has not either been
settled or submitted by the Commission or by the state concerned to the Court and its jurisdiction accepted, the
Commission may, by the vote of an absolute majority of its members, set forth
its opinion and conclusions concerning the question submitted for its
consideration. (emphasis added)
27) Trinidad
and Tobago maintained that the Confidential Report No. 53/00, issued pursuant
to Article 50 of the Convention, was submitted to the State on July 5, 2000.
Consequently, the three-month time period stipulated in Article 51(1) expired
on October 4 of the same year, and the Court should therefore have accepted
jurisdiction on the matter before that date. However, the Commission referred
the case to the Court on October 5, 2000, and it “accepted jurisdiction” on
October 19, the same year.
Arguments of the Commission
28) The
Commission contended that the practice and case law of the Court establish that
the three-month period in Article 51(1) of the Convention should be calculated
based on the Gregorian Calendar month; that is to say, from the date of the
referral to the State of the Commission’s Report pursuant to Article 50, to
midnight on the same date three months after; and not, as the State alleged, on
the basis of 90 calendar days.
29) The
Commission indicated that the State acknowledged that the Commission
transmitted its Report No. 53/00 under Article 50 of the Convention on July 5,
2000, and subsequently referred the application to the Court on October 5, of
the same year. Based on these facts,
uncontested by the State, the Commission submitted that it properly complied
with the three-month period stipulated in Article 51(1) of the Convention, as
interpreted by the Court, when it submitted the Benjamin et al. case to the Court.
30) The
Commission also stated that the phrase “its jurisdiction accepted” in Article
51(1) of the Convention cannot be interpreted so as to require the Court to
make an express act of acceptance of jurisdiction in each application, much
less to require it to do so within the three-month period prescribed in the
article.
31) The
Commission argued that the interpretation of Article 51(1) of the Convention
advocated by the State would not accord with the ordinary meaning of the terms
of the provision in their context, or with the object and purpose of the
Convention. It would be inconsistent with other provisions of the Convention,
the Court’s Statute, and the Court’s procedure and jurisprudence.
32) It
added that the State’s interpretation of Article 51(1) of the Convention would
necessarily require the Court to make a determination as to whether it has
jurisdiction to entertain a case within the same three-month period prescribed
for the Commission or a State to submit a matter to the Court. Such an interpretation is plainly not
viable, as it would inevitably provide parties with insufficient time to raise
preliminary objections, for a hearing on preliminary issues, or for the Court
to make a determination respecting its jurisdiction in a given case. As a consequence, the Court would lose
jurisdiction in most, if not all, of the cases submitted to it. Such an
interpretation of Article 51(1) would be irrational in the context of the
Convention as a whole, and is plainly contrary to the object and purpose of the
Convention.
33) Interpreting
Article 51(1) as speaking to the acceptance by the State of the Court’s
compulsory jurisdiction under Article 62 of the Convention, on the other hand,
is consistent with the Convention’s object and purpose, and is reinforced by
it, the Court’s Statute, and the procedure and jurisprudence of the Court.
Article 61 of the Convention, for example, expressly contains instructions to
comply with Articles 48 to 50, but not Article 51, as a precondition for the
Court to hear a case. Similarly, Article 2 of the Statute defines the Court’s
compulsory jurisdiction in terms of Articles 61, 62, and 63, but not Article
51, of the Convention.
34) Further,
the Commission indicated that Article 36 of the Court’s Rules of Procedure
provides a period of two months from the date of notification of an application
for parties to raise preliminary objections, and a further thirty days for the
submission of any additional written briefs on the preliminary objections. The
timing of this process is clearly incompatible with an interpretation of
Article 51(1) that would require preliminary objections to be filed within
three months of the date of transmission of the Commission’s Article 50
Report. Moreover, the Court has
determined in its jurisprudence that Article 51 of the Convention requires a
matter to be filed before the Court within the three-month period under Article
51, but has never interpreted said article in a manner that requires the Court
to determine its jurisdiction over the case within this same three-month period.
35) Even
in respect of the requirement under Article 51 of the Convention that an
application be filed with the Court within the three-month period prescribed
thereunder, the Court has held in its Advisory Opinion Certain Attributes of the Inter-American Commission on Human Rights
(OC-13/93)[6]
that the time limit, while of preclusive character, is not fatal with regard to
the submission of a case to the Court where special circumstances exist. In
particular, the Court has established in the Cayara case’s preliminary objections[7]
that an application containing “serious charges” cannot be deemed to have
lapsed simply on the grounds of a brief lapse in the time period under Article
51 of the Convention and, more generally, that the Court’s procedural system as
a means of attaining justice cannot be sacrificed for the sake of mere
formalities.
36) Given
the urgency of the issues raised in the present application before the Court,
particularly the legitimacy of the pending executions, the Commission requested
that the State should not be permitted to defeat the Court’s jurisdiction over
the case based upon an erroneous interpretation of the procedural period under
Article 51 of the Convention.
Considerations of the Court
37) The
Court considers that insofar as the first argument of the State’s preliminary
objection is concerned, several implicit issues must be clarified: first, the State objects to the Commission’s
submission of the complaint, which it considers to have expired in light of the
three months stipulated in Article 51(1) of the Convention; and second, it
objects to the supposed “failure of the Court to accept jurisdiction” within
the mentioned time limit.
38) The
Court will not analyze whether the application was submitted within ninety days
of July 5, 2000, since it is of the opinion that, in accordance with Article
51(1) of the American Convention, the period of three months should be based on
the Gregorian calendar month, which is to say, from date to date.
39) As
this Court has established in the Paniagua
Morales et al. Case
it has been
the regular practice of the Court to compute the period of three months
referred to in Article 51(1) of the Convention from date to date […]
In the
Caballero Delgado and Santana Case (Caballero
Delgado and Santana Case, Preliminary Objections, Judgment of January 21,
1994. Series C No. 17), the Court
inadvertently used the expression “90 days” as the equivalent of “three months”
(paragraph 39) when referring to an argument of the Commission, and applied the
two expressions synonymously (paragraph 43).
Nevertheless, in that same case, the Court applied the criteria of three
calendar months, as it is in paragraph 39 of that judgment, which applied a
period of three months from October 17, 1991 to January 17, 1992 (if the period
has been computed in days and not by the Gregorian calendar, ninety-three will
have transpired). Also in the Neira
Alegria et al. Case (Neira Alegría et al.
Case, Preliminary Objections, Judgment of December 11, 1991. Series C No. 13, paras. 32-34), the Court applied the period of
three months from June 11, 1990, to September 11, 1990 (three calendar months
made up of ninety-three days).
The Court
decides that, in accordance with Article 51(1) of the American Convention, the
Inter-American Commission has a period of three months from the transmission of
the Report referred to in Article 50(1) of the Convention, to submit the case
to the Court. The expression “period of three months” should be
understood in its ordinary meaning. According
to the Dictionary of the Royal Academy of the Spanish Language, “period” “[ is the] term or time indicated for something” and “month [is the] number of
consecutive days from the one indicated to another of the same date in the
following months.” Additionally,
the Vienna Convention on the Law of Treaties (Article 31(1)) considers in its
rules of interpretation, the ordinary meaning of the words, as well as the
context, and the object and purpose of the treaty[8].
40) The
Court finds it convenient to clarify, in light of the State’s arguments, that
what took place on October 19, 2000 was a notification of the application (supra 16). Consequently, it should not be interpreted that the three-month
time period stipulated in Article 51(1) of the Convention applies to the
Court’s actions in the exercise of its own jurisdiction, as this emanates from
the American Convention. Article 51(1) only refers to a limit for the
submission of the application to the Court and does not directly relate to the
Court’s actions relative to the determination of its jurisdiction. When the text of Article 51(1) says “its
jurisdiction accepted”, this refers to the acceptance of the Court’s
jurisdiction on the part of the State,
and not the Court’s actions in the exercise of its own jurisdiction.
41) For
the foregoing considerations, the Court dismisses the first argument of the
State’s preliminary objection, in which it refers to the timeliness of the
application and the “acceptance of jurisdiction” on the part of the Court.
B. LACK OF JURISDICTION OF THE COURT
Arguments of the State
42) As
previously stated by Trinidad and Tobago, the State deposited its instrument of
adherence of the Convention on May 28, 1991, dated April 3, 1991, recognizing
the compulsory jurisdiction of the Court, but subjected this recognition to a
“reservation”. The State’s
“reservation” reads that
[a]s regards Article 62 of the
Convention, the Government of the Republic of Trinidad and Tobago, recognizes
the compulsory jurisdiction of the Inter-American Court of Human Rights, as
stated in the said article, only to such extent that recognition is consistent
with the relevant sections of the Constitution of the Republic of Trinidad and
Tobago; and provided that Judgment of the Court does not infringe, create or
abolish any existing rights or duties of any private citizen.
43) The State indicated that Article 75 of
the Convention declares that it can only be subject to reservations in
conformity with the provisions of the Vienna
Convention on the Law of Treaties signed on May 23, 1969 (hereinafter “the
Vienna Convention”). In this respect,
Article 19 of the same provides
[a] State
may, when signing, ratifying, accepting, approving or acceding to a treaty,
formulate a reservation unless:
a) the reservation is prohibited by the
treaty;
b) the treaty provides that only
specified reservations, which do not include the reservation in question, may
be made; or
c) in cases not falling under subparagraphs (a) and (b),
the reservation is incompatible with the object and purpose of the treaty.”
44) The State also mentioned that in its
Advisory Opinion on The Effect of
Reservations on the Entry into Force of the American Convention on Human Rights
(OC-2/82), the Court had stated that the reference in Article 75 to the
Vienna Convention was intended to be a reference to paragraph (c) of Article 19
of the Vienna Convention and “makes sense only if it is understood as an
express authorization designed to enable States to make whatever reservations
they deem appropriate, provided the reservations are not incompatible with the
object and purpose of the treaty. As
such they can be said to be governed by Article 20(1) of the Vienna Convention
and, consequently, do not require acceptance by any other State party” [9].
45) The
State argued that its “reservation” was made relative to its acceptance of the
Court’s jurisdiction and is limited to Article 62 of the American
Convention. According to Trinidad and
Tobago, Article 62 of the Convention is an optional clause that States can
freely “accept or reject”. Those States
that accept and so declare are expressly authorized to do so subject to
conditions. The Convention permits
restrictions at the moment of acceptance of the Court’s jurisdiction under
Article 62, which does not affect the enjoyment or exercise of the rights and
liberties recognized in the Convention.
Consequently, given that the “reservation” does not deny the exercise of
any of the rights provided for in the Convention, it can be considered
compatible with the object and purpose of the same.
46) Trinidad
and Tobago contended that, in accordance with universally recognized principles
of International Law, the exercise of the jurisdiction by an international
court with respect to a State is not a right but a privilege only exercisable
with the express consent of the State.
Article 62 of the Convention reflects this position.
47) The
State added that the Constitution of Trinidad and Tobago is and was, at the
moment of ratification of the Convention, compatible with the same. It argued that its “reservation” cannot be
interpreted as contrary to the object and purpose of the Convention because the
“reservation” is only related to the optional procedure contained in Article 62
of the Convention, which in no way affects the substantive rights guaranteed in
the Convention. The purported
“reservation,” as presented, it argued, does not restrict the obligations
assumed by the State under the Convention in relation to individuals within its
jurisdiction.
48) Trinidad and Tobago also maintained that,
if the Court declares the State’s Article 62 “reservation” incompatible with
the object and purpose of the American Convention, the effect of such a
determination would be to render the State’s declaration accepting the Court’s
compulsory jurisdiction null and void ab
initio.
49) The State added that the International
Court of Justice, in its Advisory Opinion on
Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide (1951),
indicated that
[…] if a Party to the Convention
objects to a reservation which it considers to be incompatible with the object
and purpose of the Convention, it can in fact consider the reserving State is
not a party to the Convention […]
50) The
State indicated that, in its legal system, it is the Legislative Power that
makes the laws. The Executive cannot,
at the moment of ratification of a treaty, alter the laws of the Republic or
create a constitutional breach. For
this reason, the Executive, at the time of accession to the Convention and
acceptance of the compulsory jurisdiction of the Court, formulated the
“reservation” under Article 62. In this
same manner, the State denounced the Convention in May of 1998, in virtue of
the need to observe the provisions of the Constitution of the Republic of
Trinidad and Tobago.
51) If
the “reservation” of State were, for any reason, considered invalid, it would
not mean that the State declared its unlimited acceptance of the compulsory
jurisdiction of the Court. On the
contrary, it is clear that the State never intended to accept, in its totality,
the jurisdiction of the Court. If the
“reservation” is invalid, then the declaration was invalid and the State never
made a declaration.
Arguments
of the Commission
52) The
Commission sustained that the impugned term in the State’s declaration of
acceptance of the Court’s jurisdiction should be considered invalid because it
is impossible to determine its exact nature and scope. It is excessively vague and should not be
interpreted in a manner that affects the Court’s jurisdiction to decide cases
against the State. If a meaning is to
be attributed, it should be interpreted in a manner that limits the legal
effects of the Court’s judgments, and not the Court’s jurisdiction to decide
cases against the State.
53) The
Commission indicated that the United Nations Human Rights Committee has stated
that reservations to human rights treaties must be specific and transparent so
that courts, individuals under the jurisdiction of a reserving State, and other
States parties can know which human rights obligations have or have not been
undertaken. The term contained in the
State’s “reservation” appears to modify the degree of acceptance of the compulsory
jurisdiction of the Court. However, a
simple reading of the term makes it difficult to determine the restrictions
that the State has purported to establish under Article 62 to its assumed
obligations under the Convention.
54) The term can also be interpreted in
various ways. For example, it could be
interpreted to mean that the Court is precluded from hearing and deciding a
case related to allegations of violations of a Convention right if the same
right is not protected under the State’s Constitution. Alternatively, it could be interpreted to
mean that while the Court has jurisdiction to hear and determine a matter, the
Court’s judgment must be consistent with certain unstipulated sections of
Trinidad and Tobago’s Constitution.
55) The
Commission noted that the State only relies upon the first part of the
declaration in concluding that the Court has no jurisdiction. It pointed out that the State makes no
reference to the portion of the declaration, which reads “and provided that any
judgment of the Court does not infringe, create, or abolish any existing rights
or duties of any private citizen”, and considered that it is apparent that the
State specifically acknowledges in this second part of the declaration that the
Court has competence to give judgments in cases against Trinidad and Tobago. It may therefore be that, taking the first
and second parts of the declaration together, the State was concerned that the
giving effect in Trinidad and Tobago to the judgments of the Court should not
have an adverse effect on the existing private rights of the citizens, and
deprive them of rights they already enjoyed or impose on them duties to which
they were not already subject.
56) The
term could be interpreted to mean that, provided that there is no provision in
the Constitution expressly prohibiting the State from accepting the compulsory
jurisdiction of the Court, the recognition of this jurisdiction is complete and
effective. In this sense, the State
does not suggest that there are provisions of the Constitution of Trinidad and
Tobago that prohibit the State from accepting the jurisdiction of the Court.
57) In light of the various possible
interpretations of the term, it appears so ambiguous that its meaning and scope
will depend upon a subjective judgment by the State as to what provisions of
the Constitution are “relevant” and in what respect the State’s acceptance of
the Court’s jurisdiction must be “consistent” with those provisions, the term,
would undermine the Court’s exclusive authority to determine its own
jurisdiction, and thereby also render the term invalid.
58) The
Commission also indicated that the term in the State’s declaration of
acceptance is not authorized by Articles 62 or 75 of the Convention and is
incompatible with the Convention’s object and purpose.
59) In conformity with Article 62(2) of the
Convention, the “declaration may be made unconditionally, on the condition of
reciprocity, for a specific period or for specific cases”. The State’s “reservation” does not invoke
the requirement of reciprocity, or temporal limitations, nor does it define
specific cases in which the Court will apply its jurisdiction.
60) Secondly, and in conformity with Article
75 of the Convention and, specifically Article 19 of the Vienna Convention, the
State’s “reservation” is not permitted, as it is contrary to the object and
purpose of the Convention. The
“reservation” is also contrary to general principles of International Law.
61) Finally, the term, as interpreted by the
State, would limit the ability of the Court to interpret and apply certain
provisions of the Convention in all cases against Trinidad and Tobago before
the Court, as it would permit the Tribunal to interpret and apply Convention
rights only to the extent that such rights are protected in the State’s
Constitution.
62) The Commission considered that the
State’s position ignores the fact that it is the responsibility of the Court,
not the State, to determine whether the domestic laws of the State, including
its Constitution, are consistent with the rights protected by the Convention. It noted that the Inter-American Court has
emphasized that the issue of jurisdiction in a particular case is one that only
the Court, not States parties, can decide. This clearly extends to the
interpretation of the terms included in declarations of acceptance made by
various States parties under Article 62 of the Convention.
63) In
the abovementioned circumstances, interpreting Article 62 of the American
Convention as authorizing the terms of the State’s acceptance would contravene
Article 29(a) of the Convention because it would effectively permit the State
to violate the Convention with respect to the alleged victims in this
case. The State has interpreted its
declaration in a manner that prohibits the Court from considering the specific
aspects of the “mandatory death penalty”.
64) The Commission also contended that the
impugned term could be severed from the State’s acceptance of the Court’s
compulsory jurisdiction, preserving the validity and effectiveness of the said
instrument.
65) The Convention protects the human rights
of individuals subject to the jurisdiction of the States parties, so the
State’s “reservation” should be interpreted in a manner that strengthens rather
than weakens this regime, and, as such, increases, not diminishes, the
protection of human rights in the entire hemisphere.
66) Severing the impugned term from the
State’s declaration of acceptance, instead of annulling the declaration in toto, serves to guarantee the
fundamental human rights of the alleged victims and those of individuals in
similar situations who would not otherwise have effective domestic remedies of
protection.
67) Trinidad
and Tobago was the only State Party at its moment of accession to have attached
conditions of this nature to its acceptance of the Court’s jurisdiction. In contrast, the majority of States had
accepted the jurisdiction of the Court unconditionally. It is a principle of International Law and a
“fundamental precept underlying the American Convention”, that States cannot
invoke their internal law as a justification for not complying with a
treaty. Nonetheless, this is what the
State purports to do with its interpretation of the impugned term.
68) The Inter-American Commission argued that
the Court could follow the reasoning of the European Court of Human Rights
(hereinafter “the European Court”) in the case of Loizidou v. Turkey, which declared that ratione loci restrictions could be severed from the declaration of
acceptance, leaving intact the acceptance of the optional clauses.
Considerations
of the Court
69) The
Court must settle the matter of the purported “reservation” with which the
State of Trinidad and Tobago accompanied its acceptance of the contentious
jurisdiction of the Inter-American Court. The Court, as with any court or
tribunal, has the inherent authority to determine the scope of its own
competence. (compétence de la competence/Kompetenz-Kompetez).
70) The
Court must give an interpretation to the declaration of the State, as a whole,
that is in accordance with the canons and practice of International Law in
general, and with International Human Rights Law specifically, and which awards
the greatest degree of protection to the human beings under its guardianship.
71) The Court cannot abdicate this
prerogative, as it is a duty that the American Convention imposes upon it,
requiring it to exercise its functions in accordance with Article 62(3)
thereof. That provision reads that
“[t]he jurisdiction of the Court shall comprise all cases concerning the
interpretation and application of the provisions of this Convention that are
submitted to it, provided that the States Parties to the case recognize or have
recognized such jurisdiction, whether by special declaration pursuant to the
preceding paragraphs, or by a special agreement”.
72) As this Tribunal has indicated in its
judgments on jurisdiction in the Cases of Constitutional
Court and Ivcher Bronstein:
The jurisdiction of the Court
cannot be contingent upon events extraneous to its own actions. The instruments consenting to the optional
clause concerning recognition of the Court’s binding jurisdiction (Article
62(1) of the Convention) presuppose that the States submitting them accept the
Court’s right to settle any controversy relative to its jurisdiction. An objection or any other action taken by
the State for the purpose of somehow affecting the Court’s jurisdiction has no
consequence whatever, as the Court retains the compétence de la compétence, as it is master of its own
jurisdiction[10].
73) Interpreting
the Convention in accordance with its object and purpose, the Court must act in
a manner that preserves the integrity of the mechanism provided for in Article
62(1) of the Convention. It would be
unacceptable to subordinate the said mechanism to restrictions that would
render the system for the protection of human rights established in the
Convention and, as a result, the Court’s jurisdictional role, inoperative.
74) As this Court has indicated in the Cases
of Constitutional Court and Ivcher Bronstein
[t]he States Parties to the
Convention must guarantee compliance with its provisions and its effects (effet utile) within their own domestic
laws. This principle applies not only
to the substantive provisions of human right treaties (in other words, the
clauses on the protected rights), but also to the procedural provisions, such
as the one concerning recognition of the Tribunal’s contentious jurisdiction.
That clause, essential to the efficacy of the mechanism of international
protection, must be interpreted and applied in such a way that the guarantee
that it establishes is truly practical and effective, given the special nature
of human rights treaties [...] and their collective enforcement[11].
75) Article
31(1) of the 1969 Vienna Convention provides that
[a] treaty
shall be interpreted in good faith in accordance with the ordinary meaning to
be given to the terms of the treaty in their context and in the light of its
object and purpose.
76) The Court’s duty, at this stage, is to
decide, as the present case requires, whether Trinidad and Tobago’s
“reservation” has the effect of excluding the Court’s jurisdiction in the
manner alleged by the State.
77) As previously noted, the purported “reservation” contains two
parts. The first intends to limit the
recognition of the Court’s compulsory jurisdiction in the sense that said
recognition is only valid to the extent that it is “consistent with the
relevant sections” of the Constitution of Trinidad and Tobago. These expressions can lead to numerous
interpretations. Nonetheless, it is
clear to the Court that they cannot be given a scope that would impede this
Tribunal’s ability to judge whether the State had violated a provision of the
Convention. The second part of the
purported restriction relates to the State’s “recognition” of the Court’s
compulsory jurisdiction so that its judgments do not “infringe, create or
abolish any existing rights or duties of any private citizen” (sic).
Again, though the precise meaning of this condition is unclear, without
a doubt it cannot be utilized with the purpose of suppressing the jurisdiction
of the Court to hear and decide an application related to an alleged violation
of the State’s conventional obligations.
78) In
this respect, paragraphs 1 and 2 of Article 62 of the American Convention
establish:
1.
A State Party may, upon depositing
its instrument of ratification or adherence to this Convention, or at any
subsequent time, declare that it recognizes as binding, ipso facto, and not requiring special agreement, the jurisdiction
of the Court on all matters relating to the interpretation or application of
this Convention.
2. Such
declaration may be made unconditionally, on the condition of reciprocity, for a
specified period, or for specific cases.
It shall be presented to the Secretary General of the Organization, who
shall transmit copies there to the other states of the Organization and to the
Secretary of the Court.
79) The
Court observes that the instrument of acceptance of the Court’s compulsory
jurisdiction on the part of Trinidad and Tobago is not consistent with the
hypothesis stipulated in Article 62(2) of the American Convention. It is general in scope, which completely
subordinates the application of the American Convention to the internal
legislation of Trinidad and Tobago as decided by its courts. This implies that the instrument of
acceptance is manifestly incompatible with the object and purpose of the
Convention. As a result, the said
article does not contain a provision that allows Trinidad and Tobago to formulate
the restriction it made.
80) An
interpretation of the American Convention done “in good faith in accordance
with the ordinary meaning to be given to the terms of the treaty in their
context and in light of its object and purpose” leads this Court to the view
that a State party to the Convention can only release itself of its obligations
under the Convention by following the provisions that the treaty itself
stipulates[12].
81) Article
29(a) of the American Convention stipulates that no provision of the Convention
shall be interpreted as “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”. Consequently, it would be
meaningless to suppose that a State which had freely decided to accept the
compulsory jurisdiction of the Court had decided at the same time to restrict
the exercise of its functions as foreseen in the Convention. On the contrary, the mere acceptance by the
State leads to the overwhelming presumption that the State will subject itself
to the compulsory jurisdiction of the Court.
82) The
effect of the State’s third allegation would be to limit its recognition of the
Court’s completely mandatory jurisdiction, with negative consequences for the
exercise of the rights protected by the Convention.
83) The
declaration formulated by the State of Trinidad and Tobago would allow it to
decide in each specific case the extent of its own acceptance of the Court’s
compulsory jurisdiction to the detriment of this Tribunal’s compulsory
functions. In addition, it would give
the State the discretional power to decide which matters the Court could hear,
thus depriving the exercise of the Court’s compulsory jurisdiction of all
efficacy.
84) Moreover,
accepting the said declaration in the manner proposed by the State would lead
to a situation in which the Court would have the State’s Constitution as its
first point of reference, and the American Convention only as a subsidiary
parameter, a situation which would cause a fragmentation of the international
legal order for the protection of human rights, and which would render illusory
the object and purpose of the Convention.
85) The American Convention and the other human rights treaties are
inspired by a set of higher common values (centered around the protection of
the human being), are endowed with specific supervisory mechanisms, are applied
as a collective guarantee, embody essentially objective obligations, and have a
special character that sets them apart from other treaties. The latter govern mutual interests between
and among the States parties and are applied by them, with all the juridical
consequences that follow there from for the international and domestic systems[13].
86) In
this respect, in its Advisory Opinion on The
Effect of Reservations on the Entry into Force of the American Convention on
Human Rights (OC-2/82), the Court found that
[m]odern human
rights treaties in general, and the American Convention in particular, are not
multilateral treaties of the traditional type concluded to accomplish the
reciprocal exchange of rights for the mutual benefit of the contracting States.
Their object and purpose is the protection of the basic rights of individual
human beings irrespective of their nationality, both against the State of their
nationality and all other contracting States. In concluding these human rights
treaties, the States can be deemed to submit themselves to a legal order within
which they, for the common good, assume various obligations, not in relation to
other States, but towards all individuals within their jurisdiction[14].
87) That
finding is consistent with the case law of other international jurisdictional
bodies[15].
88) As this Court has stated in the cases of Constitutional Court and Ivcher Bronstein
[n]o analogy can be drawn between
the State practice detailed under Article 36(2) of the Statute of the
International Court of Justice and acceptance of the optional clause concerning
recognition of the binding jurisdiction of this Court, given the particular
nature and the object and purpose of the American Convention. The European
Court of Human Rights ruled similarly in its judgment on preliminary objections
in the Loizidou v. Turkey case
(1995), in connection with optional recognition of the European Court’s binding
jurisdiction (Article 46 of the European Convention, before Protocol XI to the
European Convention entered into force on 11.01.1998). The European Court held that the European
Convention was a law-making treaty[16].
89) For the foregoing reasons, the Court
considers that Trinidad and Tobago cannot prevail in the limitations included
in its instrument of acceptance of the optional clause of the mandatory
jurisdiction of the Inter-American Court of Human Rights in virtue of what has
been established in Article 62 of the American Convention. Consequently, the Court considers that it
must dismiss the second and third arguments in the preliminary objection
presented by Trinidad and Tobago insofar as they refer to the Court’s
jurisdiction.
VIII
OPERATIVE
PARAGRAPHS
90) Now therefore,
THE COURT
DECIDES
Unanimously,
1. To
dismiss the preliminary objection presented by the State in its totality.
2. To continue to examine and process the
instant case.
3. To
commission its President, at the appropriate time, to convene the State and the
Inter-American Commission to a public hearing on the merits of the case, to be
held at the seat of the Inter-American Court of Human Rights.
4. To
notify the State and the Inter-American Commission on Human Rights of this
judgment.
Judges Cançado Trindade,
Salgado-Pesantes, and García-Ramírez informed the Court of their Individual
Opinions, which are attached to this Judgment.
Done in Spanish and English, the
Spanish version being the authentic, in San José, Costa Rica, on September 1,
2001.
Antônio A.
Cançado Trindade
President
Máximo
Pacheco-Gómez Hernán
Salgado-Pesantes
Oliver Jackman
Alirio Abreu-Burelli
Sergio
García-Ramírez Carlos
Vicente de Roux-Rengifo
Manuel E. Ventura-Robles
Secretary
So ordered,
Antônio A.
Cançado Trindade
President
Manuel E.
Ventura-Robles
Secretary