University of Minnesota

Compatibility of Draft Legislation with Article 8(2)(h) of the American Convention on Human Rights,
Advisory Opinion OC-12/91, December 6, 1991, Inter-Am. Ct. H.R. (Ser. A) No. 12 (1991).


Requested by the Government of Costa Rica


Also present:

THE COURT composed as above, refers to the request for advisory opinion as follows:

1. By note of February 22, 1991, the Government of the Republic of Costa Rica ( hereinafter " the Government " or " Costa Rica " ) submitted to the Inter-American Court of Human Rights ( hereinafter " the Court " ) a request for advisory opinion pursuant to Article 64( 2 ) of the American Convention on Human Rights ( hereinafter " the Convention " or " the American Convention " ), regarding the compatibility of draft legislation to amend two articles of the Code of Criminal Procedure and to establish a Court of Criminal Appeal, currently before the Legislative Assembly, with Article 8( 2 )( h ) of the aforementioned Convention.

2. The instant advisory opinion request presents the following questions:

The Government adds that its reason for seeking this advisory opinion is that it

3. The Court has been asked to render an opinion about the compatibility of draft legislation with the Convention, on the following articles:

4. The Government appointed as its Agent His Excellency Bernd H. Niehaus, Minister of Foreign Affairs and Worship. Subsequently, by note of July 10, 1991, the Government named Licenciado Alvaro Jiménez-Calderón, Legal Director of the Ministry of Foreign Affairs and Worship, to be its Agent in all matters arising from this advisory opinion request.

5. By notes dated April 9 and 12, 1991, the Secretariat of the Court, acting pursuant to Article 52 of the Rules of Procedure of the Court, requested written observations and other relevant documents on the issues involved in this proceeding from the Member States of the Organization of American States ( hereinafter " the OAS " ) and, through the Secretary General of that organization, from the organs listed in Chapter VIII of the Charter of the OAS.

6. The President of the Court directed that the written observations and other relevant documents be filed with the Secretariat before July 15, 1991.

7. Observations were received from the governments of Belize, Costa Rica and Uruguay.

8. The Government of Uruguay considered that

9. After reviewing the observations submitted by the Member States of the OAS, the Court issued an Order dated July 31, 1991, inviting the Government to present its views thereon. The Court also requested the Inter-American Commission on Human Rights ( hereinafter " the Commission " or " the Inter-American Commission " ) to present all the information available to it regarding cases pending against Costa Rica in which a violation of Article 8( 2 )( h ) of the Convention is alleged.

10. On October 1, 1991, responding to the aforementioned Order, the Government presented a communication declaring that:

With regard to the advisory opinion on " The Word " Laws " ( supra 8 ), the Government added that

11. In a communication dated September 30, 1991, the Commission informed the Court about the cases pending before it against Costa Rica for the alleged violation of Article 8( 2 )( h ) of the American Convention.

The Commission explained, among other things, that

12. This request for an advisory opinion has been submitted to the Court pursuant to Article 64(2) of the Convention by Costa Rica, a Member State of the OAS. The request seeks an opinion regarding the compatibility of certain draft laws being considered by the Legislative Assembly of Costa Rica with Article 8(2)(h) of the Convention.

13. Article 64 of the Convention reads as follows:

14. Pursuant to Article 64( 2 ) of the Convention, Costa Rica has the right to submit an advisory opinion request to the Court regarding the compatibility of its domestic laws with the American Convention. But as the Court has emphasized on various occasions, this fact alone does not make every such request admissible, nor does it compel the Court to answer the questions submitted to it [ " Other Treaties " Subject to the Advisory Jurisdiction of the Court ( Art. 64 American Convention on Human Rights ), Advisory Opinion OC-1/82 of September 24, 1982. Series A No. 1, para. 31]. Whether the Court will hear the request depends upon the resolution of a number of issues that must now he addressed first.

15. In its observations on the instant advisory opinion request, the Government of Uruguay submits that the Court lacks the power to grant the request because a proposed law is not a " domestic law " within the meaning of Article 64( 2 ) of the Convention as that concept has been interpreted by the Court in its Advisory Opinion " The Word " Laws ", " where it ruled that

The Government of Uruguay contends that only legal norms that have met these requirements qualify as " domestic laws " under Article 64( 2 ) of the Convention and, hence, as proper subjects of an advisory opinion.

16. Article 30 of the Convention, to which Advisory Opinion The Word " laws " refers, reads as follows:

17. When the Court interpreted the word " laws " as it appears in Article 30, it made clear that it was not a question

Article 30 of the Convention is a very special provision which proceeds on the assumption that certain restrictions to the enjoyment of rights and freedoms may only be applied in accordance with laws that are already enacted and in force.

18. That Advisory Opinion and the definition of the word " laws " the Court adopted on that occasion consequently refer only to Article 30 of the American Convention and, without more, cannot be applied to Article 64( 2 ) of that Convention. It follows that the argument of Uruguay does not provide a sufficient basis for rejecting the instant request.

19. In its Advisory Opinion " Proposed Amendments " ( supra 10 ), the Court had the opportunity to interpret in extenso Article 64( 2 ) of the Convention, which is the article on which Costa Rica relies. There the Government submitted a request for an advisory opinion regarding the compatibility with the Convention of a draft amendment to the Constitution.

20. On that occasion the Court held that, since the purpose of its advisory jurisdiction is to " assist states and organs to comply with and to apply human rights treaties without subjecting them to the formalism and the sanctions associated with the contentious judicial process " [Restrictions to the Death Penalty ( Arts. 4( 2 ) and 4( 4 ) American Convention on Human Rights ), Advisory Opinion OC-3/83 of September 8, 1983. Series A No. 3, para. 43, quoted in " Proposed Amendments, " supra 10, para. 19],

21. On that occasion, the Court stated, furthermore, that "the "ordinary meaning" of terms [of a treaty] cannot of itself become the sole rule, for it must always be considered within its context and, in particular, in the light of the object and purpose of the treaty " ( Ibid., para. 23. )

22. The foregoing considerations led the Court, on that occasion, to accept the advisory opinion and to hold that, in certain circumstances and pursuant to the powers conferred on it by Article 64( 2 ), the Court may render advisory opinions regarding the compatibility of " draft legislation " with the Convention.

23. The Court will now examine the specific facts relating to this advisory opinion request. These facts are relevant inasmuch as the Court has determined

24. The Court asked the Inter-American Commission for information about pending cases charging Costa Rica with violations of Article 8( 2 )( h ) of the American Convention ( supra 9 ). According to the Commission, it has opened nine case files based on these allegations. In one of them, No. 9328, the Commission adopted Resolution No. 26/86 in 1986, which found Costa Rica to be in violation of Article 8( 2 )( h ) of the Convention, recommended that Costa Rica adopt the appropriate legislative or other measures to remedy the situation, and decided to refer the case to the Court in the event that these measures were not taken within a period of six months. Thereafter, the Government asked for and received two additional six-month extensions from the Commission to comply with this resolution. In September 1988, the Commission again reminded the Government of Resolution No. 26/86. The following month, the Government asked for another six-month extension on the ground that relevant draft legislation had been sent to the Costa Rican legislature for enactment. The Commission granted the Government an extension of 120 days. In September 1989, the Government appeared before the Commission, presented the text of the proposed legislation, and asked for yet another extension until the next session of the Commission, which was scheduled for May 1990. Pending the adoption of the draft legislation, the Commission suspended its consideration of the remaining cases.

25. During its May 1990 session, when Costa Rica had still not complied with Resolution No. 26/86, the Commission considered once more whether to send the case to the Court. It decided not to take this action after being informed by Costa Rica that its Supreme Court had recently held that " Article 8( 2 )( h ) of the Convention was self-executing. " The Commission transmitted the Government's contention to the claimant in Case 9328, but received no reply. The Commission addressed similar communications to the claimants in the other cases pending against Costa Rica, but made no findings in relation to them.

26. The repeated extensions requested by the Government and granted by the Commission have noticeably delayed the disposition of these cases. In February 1991, five years after the Commission adopted Resolution 26/86, wherein it decided, inter alia, to refer the case in due course to the Court, Costa Rica sought an advisory opinion concerning draft legislation that, after all that time, still remains to be adopted.

27. Furthermore, as already noted, the Commission still has under consideration various petitions charging Costa Rica with violations of Article 8( 2 )( h ) of the Convention. The Commission postponed for a long time the referral of one of these cases to the Court, while it suspended the processing of the remaining cases pending the fate of the draft legislation which was designed to introduce amendments that both the Commission and the Government consider capable of resolving the problem in the future.

28. The Court believes that a reply to the questions presented by Costa Rica, could produce, under the guise of an advisory opinion, a determination of contentious matters not yet referred to the Court, without providing the victims with the opportunity to participate in the proceedings. Such a result would distort the Convention system. Contentious proceedings provide, by definition, a venue where matters can be discussed and confronted in a much more direct way than in advisory proceedings. This is an opportunity which cannot be denied to individuals who do not participate in the latter proceedings. Whereas the interests of individuals in contentious proceedings are represented by the Commission, the latter may have different interests to uphold in advisory proceedings.

29. Although it appears that the draft legislation might correct, as far as concerns the future, the problems that gave rise to the petitions against Costa Rica now before the Commission, a ruling by the Court could in the long run interfere with cases that should be fully processed by the Commission in the manner provided for by the Convention ( In the Matter of Viviana Gallardo et al., No. G 101/81. Series A. Decision of November 13, 1981, para. 24 ).

30. All of the above clearly indicates that here the Court faces one of those cases where it should invoke its power to refuse to render an advisory opinion, lest it risk undermining the contentious jurisdiction in a manner that might impair the human rights of the claimants in the cases pending before the Commission.

31. For all these reasons,



Done in Spanish and English, the Spanish text being authentic, at the seat of the Court in San Jose, Costa Rica, this sixth day of December, 1991.

Héctor Fix-Zamudio


Thomas Buergenthal

Rafael Nieto-Navia

Policarpo Callejas-Bonilla

Sonia Picado Sotela

Julio A. Barberis

Manuel E. Ventura-Robles



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