ORDER OF THE PRESIDENT OF JULY 15, 1981
WHEREAS:
1. The Government of Costa Rica, represented by its Minister of Justice, Elizabeth Odio Benito, designated as Agent for this case by Executive Decree No. 389 D.M. of July 13, 1981, has submitted to the Court on this day a formal request that it investigate an alleged violation, on the part of the national authorities of that country, of human rights guaranteed by the American Convention on Human Rights in the cases of the death in prison of Viviana Gallardo and the wounding of Alejandra Maria Bonilla Leiva and Magaly Salazar Nassar, on July 1 of this year; renouncing for that purpose the prior exhaustion of the domestic legal remedies and of the prior procedures before the Inter-American Commission on Human Rights set forth in Articles 48 to 50 of the Convention;
2. The Court also received a telegram dated July 2, 1981, from Fernando and Rose Mary de Salazar, parents of one of the injured women, which referred substantially to the same acts, and
3. Costa Rica is a State Party to the American Convention on Human Rights and has expressly and unconditionally accepted the jurisdiction of the Court to hear any case relating to the interpretation and application of the provisions of the Convention, pursuant to its Article 62, and
CONSIDERING THAT:
1. In view of the fact that this is a case presented to the Court by a State Party to the Convention that has recognized its jurisdiction and, in addition, this State Party waives the prior exhaustion of the domestic legal remedies and of the prior procedures before the Inter-American Commission on Human Rights set forth in Articles 48 to 50 of the Convention, and because of the imminent session of the full Court convoked for July 16 of this year, the full Court must consider this request to determine, in the first place, its admissibility and the competence of the Court to receive and to hear it ( Arts. 25 and 44 ( 2 ) of the Rules of Procedure );
2. The below-signed President being a national of the Republic of Costa Rica, it is necessary, under Article 5( 3 ) of the same Rules, to yield the presidency for hearing this matter to the Vice President,
NOW, THEREFORE, THE PRESIDENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS RESOLVES:
1. To turn over the hearing of the request presented by the Government of the Republic of Costa Rica in the matter of Viviana Gallardo et al., together with the petition presented by the parents of one of the victims, to the full Court so that it decide, in the first place, on its admissibility and the competence of the Court in this matter.
2. To yield the presidency for the purposes of the hearing of this matter and call on the Vice-President, Judge Máximo Cisneros, to excercise that office.
San José, Costa Rica, July 15, 1981.
Rodolfo E. Piza E.
President
Charles Moyer
Secretary
DECISION OF JULY 22, 1981
WHEREAS:
1. The Government of Costa Rica, represented by Elizabeth Odio Benito, the Agent duly accredited for this case by that Government, and invoking Article 62( 3 ) of the American Convention on Human Rights, submitted to this Court on July 15, 1981 an application requesting the Court to decide whether, in the case involving the death of Viviana Gallardo and the wounding of Alejandra María Bonilla Leiva and Magaly Salazar Nassar, the national authorities of Costa Rica committed a violation of human rights guaranteed by the Pact of San José;
2. The Government of Costa Rica has stated that, for the purposes of this case, it " formally waives the requirement of the prior exhaustion of the domestic legal remedies and the prior exhaustion of the procedures set forth in Articles 48 to 50 of the Convention " ;
3. The Government of Costa Rica further requested that " this application be referred to the Inter-American Commission on Human Rights pursuant to the terms of its jurisdiction, if the Court resolves that it lacks the power to deal with the application before the procedures set forth in Articles 48 to 50 of the Convention have been completed, "
CONSIDERING THAT:
1. Costa Rica, as a State Party to the American Convention on Human Rights that, in addition, has accepted the general jurisdiction of this Court pursuant to Article 62 of the Convention, has standing to submit cases to the Court under Article 61( 1 ) of the Convention;
2. Article 46 of the Convention contains the requirement for the prior exhaustion of domestic legal remedies and prescribes that its meaning be ascertained in accordance with generally recognized principles of international law;
3. Article 61( 2 ) of the Convention provides that " in order for the Court to hear a case, it is necessary that the procedures set forth in Articles 48 to 50 shall have been completed " ;
4. The circumstances of this application require the Court to decide first on the effect to be given to the waiver by Costa Rica of the aforementioned procedures and, in general, to determine its jurisdiction to deal with the matter at this stage;
5. Article 57 of the Convention provides that " the Commission shall appear in all cases before the Court, "
NOW, THEREFORE, THE INTER-AMERICAN COURT OF HUMAN RIGHTS
1. Decides that, before determining whether it has jurisdiction and before considering any other aspect of the matter, it is appropriate for this Court to give the Government of Costa Rica and the Inter-American Commission on Human Rights the opportunity to present their views concerning the jurisdiction of the Court to deal with the case at this stage.
2. Requests that the Government of Costa Rica present its arguments concerning the jurisdiction of the Court to deal with the instant case at this stage.
3. Requests that the Inter-American Commission on Human Rights, taking into account Article 57 of the Convention, provide this Court with its views concerning the jurisdiction of the Court to deal with the instant case at this stage.
4. Instructs the President, after conferring with the Government of Costa Rica and the Inter-American Commission on Human Rights, to set an appropriate period within which the pertinent submissions are to be presented and, following consultation with the Court's Permanent Commission, to convene the Court to render a decision.
5. Instructs the Secretary to transmit the present resolution to the Government of Costa Rica and to the Inter-American Commission on Human Rights and to bring its adoption to the attention of the States Parties to the Convention and the Secretary General of the Organization of American States.
Done in Spanish and English, the Spanish text being authentic, at the seat of the Court in San José, Costa Rica, this 22nd day of July, 1981.
CARLOS ROBERTO REINA
President
PEDRO NIKKEN
HUNTLEY EUGENE MUNROE
CESAR ORDOÑEZ
MAXIMO CISNEROS
RODOLFO E. PIZA E.
THOMAS BUERGENTHAL
CHARLES MOYER
Secretary
DECISION OF NOVEMBER 13, 1981
The Inter-American Court of Human Rights, sitting in accordance with Article 62( 3 ) of the American Convention on Human Rights ( hereinafter " the Convention " ) and the relevant provisions of its Statute and Rules of Procedure, with the following judges in attendance:
Carlos Roberto Reina, President
Pedro Nikken, Vice President
César Ordoñez
Máximo Cisneros
Rodolfo E. Piza E.
Thomas Buergenthal
Also present:
Charles Moyer, Secretary
Manuel Ventura, Deputy Secretary
Having deliberated in private from November 9 through 13, 1981, the Court delivers the following decision:
1. By telegram dated July 6, 1981, the Government of Costa Rica ( hereinafter " the Government " ) announced the institution of a proceeding requesting the Court to hear the matter of Viviana Gallardo et al. A formal application was presented on July 15. In its application the Government advised the Court of its decision to submit to it the matter of Viviana Gallardo, a Costa Rican citizen who was killed in prison, as well as that relating to the injuries suffered by her cell mates, all of which were inflicted on July 1, 1981 by a member of the Civil Guard, who was guarding them at that time in the First Commissariat of that institution. The Government's application, citing Article 62( 3 ) of the Convention, requested that the Court decide whether these acts constituted a violation by the national authorities of Costa Rica of the human rights guaranteed in Articles 4 and 5 of the Convention or of any other right guaranteed therein.
2. In its application, the Government declared that for purposes of this case it " formally waives the requirement of the prior exhaustion of the domestic legal remedies and the prior exhaustion of the procedures set forth in Articles 48 to 50 of the Convention, " that is, the procedures before the Inter-American Commission on Human Rights ( hereinafter " the Commission " ). The Government also declared that the waiver was designed to enable the Court to " consider the instant case immediately and without any procedural obstacle. "
3. The Government requested subsidiarily that " this application be referred to the Inter-American Commission on Human Rights pursuant to the terms of its jurisdiction, if the Court resolves that it lacks the power to deal with the application before the procedures set forth in Articles 48 to 50 of the Convention have been completed. "
4. The Government in its application designated: Elizabeth Odio Benito, Procurator General, Minister of Justice, as Agent; Manuel Freer Jiménez and Farid Beirute Brenes, as advisers; and Roberto Steiner Acuña, Martin Trejos Benavides and Maria I. Arias Méndez, as advocates.
5. By resolution of July 15, 1981, the President of the Court, Judge Rodolfo E. Piza, decided to submit the Costa Rican application directly to the full Court for its consideration. He also decided, according to Article 5( 3 ) of the Rules of Procedure, to yield the presidency for the purposes of the hearing of this application to the Vice President Judge, Máximo Cisneros. Judge Carlos Roberto Reina was elected President of the Court on July 17, 1981 and as of that date he assumed the function of presiding over the matter.
6. In its decision dated July 22, 1981, the Court determined that " the circumstances of this application require the Court to decide first on the effect to be given to the waiver by Costa Rica of the aforementioned procedures and, in general, to determine its jurisdiction to deal with the matter at this stage. " The Court next decided that " before determining whether it has jurisdiction and before considering any other aspect of the matter, it is appropriate for this Court to give the Government of Costa Rica and the Inter-American Commission on Human Rights the opportunity to present their views concerning the jurisdiction of the Court to deal with the case at this stage. " The Court consequently requested the Government to present its arguments concerning the jurisdiction of the Court. Likewise, taking into account Article 57 of the Convention, the Court requested the Commission to provide its views on the same subject.
7. The aforesaid decision instructed the President to set an appropriate period within which the pertinent submissions were to be presented and to convene the Court to render a decision. Having consulted the Government and the Commission, the President convened the Court for November 9, 1981.
8. On October 6, 1981 the Government submitted a brief to the Secretariat containing its arguments confirming its principal and subsidiary pleas. In its brief, the Government asserted that the rule for the prior exhaustion of domestic remedies is a procedural requirement and being a rule established for the benefit of the State can be waived by it. With regard to the waiver of the procedures before the Commission, the Government declared that, according to Article 48( 1 )( f ), the Commission is to seek a friendly settlement of the matter submitted to it and that therefore there is no juridical interest in complying with the provisions of this article as the Government only requested that the Court decide whether the facts set forth constitute a violation of the Convention.
9. On October 20, 1981 the Secretariat received the Commission's reply dated October 13, stating that it had not received any communication or petition regarding the case. The Commission asserted, furthermore, " that the procedures established in Articles 48 to 50 of the American Convention on Human Rights cannot be dispensed with in any case that might be brought before the Inter-American Court of Human Rights. " Thus, the Commission is of the opinion that these procedures must be exhausted " before the Court can begin to hear the case. "
10. On October 23, 1981 the Court requested the Government to provide it with information relating to the status of the case in the courts of Costa Rica and on the applicable domestic law. The Government complied with this request on October 30.
11. On November 3, 1981 the Government was requested to provide information on civil actions that might be brought in connection with this case under Costa Rican law. The Government complied with this request on November 9.
12. From a legal point of view, this case is unique in that the Government, consistent with its country's well-known commitment to and traditional support for human rights and international cooperation and wishing to avoid lengthy delays in seeing justice done, has submitted the instant case directly to the Court before it had been examined by the Commission and before judicial proceedings that might be available in Costa Rican courts had been pursued and exhausted. Cognizant of the legal obstacles it faced in order to obtain direct access to the Court, the Government expressly declared that it waived:
a ) The requirement, set out in Article 61( 2 ) of the Convention, that " in order for the Court to hear a case, it is necessary that the procedures set forth in Articles 48 to 50 shall have been completed, " and
b ) The provision, contained in Article 46( 1 )( a ) of the Convention, which conditions the admissibility of petitions or communications lodged with the Commission whether by individuals or by States on the requirement " that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law. "
13. This matter then has its origin in the action of a State Party which presents to the Court a case of a possible violation of human rights guaranteed in the Convention that might be imputed to that State, which State, moreover, has recognized as binding, ipso facto, and not requiring a special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of the Convention. The unusual character of this case requires the Court to seek the best way to reconcile, under the applicable rules of international law, the interests involved in this matter. These are, first, the interest of the victims that the full enjoyment of the rights they have under the Convention be assured and protected; second, the need to safeguard the institutional integrity of the system that the Convention establishes and, finally, the concern reflected in the application of the Government that the case be decided by a speedy judicial process.
14. Article 61( 2 ) of the Convention is sufficiently clear in indicating that the Court may not deal with any matter unless the procedures before the Commission have been exhausted. However, as soon as the Government expressed its willingness to waive this requirement in order to facilitate the speedy consideration of this matter by this tribunal, the Court deemed it appropriate to assess the waiver and determine its scope in order to decide how to reconcile the interest of the victims and the integrity of the system guaranteed by the Convention. The Court, therefore, decided to consider the arguments that aided the Government in justifying the waiver of the aforementioned procedures as well as the views of the Commission, which, under Article 57 of the Convention, has the obligation to appear in all cases before the Court.
15. The object of international human rights protection is to guarantee the individual's basic human dignity by means of the system established in the Convention. Therefore, the Court as well as the Commission have an obligation to preserve all of the remedies that the Convention affords victims of violations of human rights so that they are accorded the protection to which they are entitled under the Convention. In this respect, it should be mentioned that neither the family of Viviana Gallardo, nor the other victims in this case, nor any person entitled, under Article 44, to present complaints to the Commission can submit them directly to the Court because individuals do not have standing, under the Convention, to present cases to it, which is another problem inherent to this case.
16. The Convention has a purpose -the international protection of the basic rights of human beings- and to achieve this end it establishes a system that sets out the limits and conditions by which the States Parties have consented to respond on the international plane to charges of violations of human rights. This Court, consequently, has the responsibility to guarantee the international protection established by the Convention within the integrity of the system agreed upon by the States. This conclusion, in turn, requires that the Convention be interpreted in favor of the individual, who is the object of international protection, as long as such an interpretation does not result in a modification of the system.
17. The application presented to the Court by the Government raises, prima facie, two issues bearing on the system established by the Convention. The first has to do with the fact that Article 61( 2 ) requires that the procedures before the Commission be exhausted before the Court can hear a case. The second concerns Article 46( 1 )( a ), which conditions the admissibility of a petition or complaint before the Commission on the requirement that the remedies under domestic law be pursued and exhausted in accordance with generally recognized principles of international law. Neither of these requirements has been complied with in this case.
18. Before considering these issues, the Court holds that, with regard to the question that is common to both issues, there can be no doubt that under the applicable norms of general international law, the Government, through its duly authorized agent, is competent to make the aforesaid waiver. This conclusion of the Court, for which there is ample support in international law, bears exclusively on the issue of the Government's competence to make the aforesaid declarations before the Convention organs and does not address the question relating to their domestic legal effect in Costa Rica, which are matters governed by domestic law.
19. Having decided that the Government has the necessary competence, the Court must determine what legal consequences attach to the waivers. For if the requirements of Articles 61( 2 ) and 46( 1 )( a ) of the Convention are waivable by a State Party, the instant case is admissible. The opposite would be true if one or the other requirement is not waivable.
20. The Court notes the very clear language of Article 61( 2 ), which provides that " in order for the Court to hear a case, it is necessary that the procedures set forth in Articles 48 to 50 shall have been completed. " Naturally, under international law relating to the interpretation of treaties, the aforementioned provision must be read 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. " ( Vienna Convention on the Law of Treaties, Art. 31( 1 ) ).
21. It is clear that in this matter no procedures at all have been initiated before the Commission. It is, therefore, not a question of deciding whether these procedures have been exhausted or when they might be considered to have been exhausted, but strictly one of determining whether the procedures can be avoided by the mere unilateral waiver of the State concerned. In order to make this determination, it is necessary to define the role that the Convention assigns to the Commission as a body having preparatory or preliminary tasks relating to the adjudicatory functions of the Court and, more particularly, whether the role assigned to the Commission has been created for the sole benefit of States, in which case it is waivable by them.
22. The Convention, in effect, in addition to giving the Commission formal standing to submit cases to the Court and to request advisory opinions and to giving it in proceedings before the Court a quasi-judicial role, like that assigned to the " Ministerio Público " of the inter-American system, obligated to appear in all cases before the Court ( Article 57 of the Convention ), gives it other attributes connected with functions that pertain to the Court and that by their nature are completed before it begins to hear a particular matter. Thus, the Commission has, inter alia, the function of investigating allegations of violations of human rights guaranteed by the Convention that must be carried out in all cases that do not concern disputes relating to mere questions of law. It follows therefrom that, although the Court, as any other judicial organ, does not lack the power to carry out its own investigations, particularly if these are necessary to provide the Court with the information it needs to discharge its functions, the Convention entrusts to the Commission the initial phase of the investigation into the allegations. The Commission also has a conciliatory function empowering it to propose friendly settlements as well as to make the appropriate recommendations to remedy the violation it has found to exist. It is also the body to which the States concerned initially provide all the pertinent information and submissions. But the Commission is also, and this is a fundamental aspect of its role in the system, the body that is authorized to receive individual complaints, that is, the entity to which victims of violations of human rights and other persons referred to in Article 44 of the Convention can resort directly in order to present their complaints and allegations. The Convention is unique among international human rights instruments in making the right of private petition applicable against States Parties as soon as they ratify the Convention; no special declaration to that effect is required for individual petitions, although it must be made for inter-State communications.
23. The Commission, thus, is the channel through which the Convention gives the individual qua individual the possibility to activate the international system for the protection of human rights. As a strictly procedural matter, it should be remembered that just as individuals cannot submit cases to the Court, States can submit them to the Commission only if the conditions of Article 45 have been met. This is yet another factor that bears on the institutional interest in fully preserving the ability of the individual by means of his own complaint to initiate proceedings before the Commission.
24. The Court notes, in addition, that it lacks the power to discharge the important function of promoting friendly settlements, within a broad conciliatory framework, that the Convention assigns to the Commission precisely because it is not a judicial body. To the individual claimant this process has the advantage of ensuring that the agreement requires his consent to be effective. Any solution that denies access to these procedures before the Commission deprives individuals, especially victims, of the important right to negotiate and accept freely a friendly settlement arrived at with the help of the Commission and " on the basis of the human rights recognized in ( the ) Convention. " ( Art. 48( 1 )( f ) ).
25. These considerations suffice to demonstrate that the aforementioned procedures before the Commission have not been created for the sole benefit of the States, but also in order to allow for the exercise of important individual rights, especially those of the victims. Without questioning the good intentions of the Government in submitting this matter to the Court, it follows from the above that the procedures before the Commission cannot be dispensed with in this kind of case without impairing the institutional integrity of the protective system guaranteed by the Convention. These procedures may therefore not be waived or excused unless it were to be clearly established that their omission, in a specific case, would not impair the functions that the Convention assigns to the Commission, as might be the case when a matter is initially presented by a State against another State and not by an individual against a State. In the instant case, the existence of such an exceptional situation is far from having been shown. The Government's waiver of the rule contained in Article 61( 2 ) consequently lacks the force necessary to dispense with the procedures before the Commission. This conclusion, in and of itself, suffices not to admit the instant application.
26. Notwithstanding the above conclusion, the fact that the Government has informed the Court of its waiver of the requirement of Article 46( 1 )( a ) of the Convention leads the Court to consider the general issues involved in that waiver. In cases of this type, under the generally recognized principles of international law and international practice, the rule which requires the prior exhaustion of domestic remedies is designed for the benefit of the State, for that rule seeks to excuse the State from having to respond to charges before an international body for acts imputed to it before it has had the opportunity to remedy them by internal means. The requirement is thus considered a means of defense and, as such, waivable, even tacitly. A waiver, once effected, is irrevocable. ( Eur. Court H. R., De Wilde, Ooms and Versyp Cases ( " Vagrancy " Cases ), judgment of 18th June 1971 ).
27. The application of this general principle may differ from case to case. As the prior exhaustion of domestic remedies is a requirement for the admissibility of a complaint before the Commission, the first question that arises is whether the Court can decide, at this time, on the applicability of that principle to this case, that is, on the scope of the waiver of the Government of this defense. Following the precedent established by international tribunals ( see " Vagrancy " cases, supra ), the Court notes that the question of whether the requirements of admissibility of a complaint before the Commission have been complied with is a matter that concerns the interpretation or application of the Convention, specifically its Articles 46 and 47, and is therefore, ratione materiae, within the scope of the Court's jurisdiction. However, because we are dealing with the admissibility requirements of a complaint or application before the Commission, it is in principle for the Commission in the first place to pass on the matter. If, thereafter, in the course of the judicial proceedings there is a dispute relating to the question of whether the admissibility requirements before the Commission have been complied with, it will be for the Court to decide, which for that purpose it has the power to accept or reject the views of the Commission in the manner analogous to its power to accept or reject the Commissions's final report. Therefore, having before it a complaint that has not as yet been dealt with by the Commission, and because it is a case that cannot be examined directly by this Court, the Court does not give an opinion, at this state of the proceedings, on the scope and effect of the waiver by the Government of the requirements concerning the prior exhaustion of domestic legal remedies.
28. One of the unusual characteristics of this case and of the aforementioned conclusions is that the Court cannot hear this case in its present state although, as an abstract proposition, it fulfills the requirements for the exercise of its jurisdiction. In effect, this is a case that involves the application and interpretation of the Convention, especially its Articles 4 and 5, and is therefore, ratione materiae, within the scope of the Court's jurisdiction. The case, moreover, has been submitted by a State Party and thus fulfills the requirement of Article 61( 1 ) of the Convention. Finally, this case presents the question of whether or not there was a violation of the human rights guaranteed in the Convention, attributable to a State that has recognized as binding, ipso facto, and not requiring special agreement, the jurisdiction of the Court. The inadmissibility of the application that the Government instituted does not, therefore, turn strictly on the lack of jurisdiction of the Court to hear the case but rather on its failure to fulfill the procedural requirements that must be met so that the Court may begin to hear a case. Thus, consistent with the spirit of Article 42( 3 ) of its Rules of Procedure, the Court holds that it is empowered to retain the case on its docket until the conditions that have made it inadmissible in its present state have been complied with.
29. Anticipating the difficulties that this case might present, the Government, in the form of a subsidiary plea, requested that in the event that the Court determined that the procedures provided for in Articles 48 to 50 of the Convention were not waivable, it refer the matter to the Commission, to the extent that the latter has jurisdiction. Despite the fact that such power is not expressly granted to the Court in the Convention, its Statute or its Rules of Procedure, the Court has no objection in complying with the request, it being understood that this action implies no decision by it concerning the Commission's jurisdiction in the instant case.
NOW, THEREFORE, THE COURT:
1. Decides, unanimously, not to admit the application of the Government of Costa Rica, requesting the Court to examine the case of Viviana Gallardo et al.
2. Decides, unanimously, to grant the subsidiary plea of the Government of Costa Rica and to refer the matter to the Inter-American Commission on Human Rights.
3. Decides, unanimously, to retain the application of the Government of Costa Rica on its docket pending the proceedings of the Commission.
Done in Spanish and English, the Spanish text being authentic, at the seat of the Court in San José, Costa Rica, this 13th day of November, 1981.
Carlos Roberto Reina
President
Pedro Nikken
César Ordóñez
Máximo Cisneros
Rodolfo E. Piza E.
Thomas Buergenthal
Charles Moyer
Secretary
( Translation )
EXPLANATION OF VOTE OF JUDGE RODOLFO E. PIZA E.
In accordance with Article 66( 2 ) of the American Convention on Human Rights I express my views by means of the following explanation of vote:
1. I have concurred in the unanimous decision of the Court because I share in its general conclusion that, within the protective system established by the American Convention on Human Rights, it does not appear possible to dispense with all of the procedures before the Inter-American Commission on Human Rights, set forth in Articles 48 to 50 of the Convention, the exhaustion of which Article 61( 2 ) imposes as a condition precedent to the contentious jurisdiction of the Court. Therefore, it is not possible to admit the waiver of the procedures expressly made by the Government of Costa Rica, which in doing so demonstrate an exalted interest in overcoming the limitations, shortcomings and delays that ordinarily afflict international justice, especially in matters such as the present which should be characterized by effectiveness and promptness.
2. However, I dissent from some of the juridical reasoning found in the majority opinion, as well as from the form in which other points, which I share, are expressed in the decision. My concurring opinion therefore should be understood only to the extent that it is compatible with the majority opinion.
3. First, the action of the Government of Costa Rica presents to the Court a complex problem, without precedent of " competence " in the very generic and imprecise sense of the language of the Convention, which involves three different kinds of matters: of JURISDICTION, the sense of the specific " jurisdictional function " that the case requires of this Court; of COMPETENCE, in the sense of the measure of the general powers of the Court to hear it; and of STANDING, in the sense of the Court's specific power to admit this case in its present state.
4. I believe, in general, that the decision should have expressly explained the conclusion implicit in the majority opinion that the action brought clearly requires the Court to exercise its CONTENTIOUS JURISDICTION; a jurisdiction that, in my opinion, the Convention organizes and regulates as ordinary, giving it an obvious condemnatory nature, as in penal jurisdiction, whose specific object is not that of defining the right in question but rather that of reestablishing the violated right, specifically deciding whether there has been a violation of the rights guaranteed by the Convention that can be imputed to a State Party which in every case is the " passive party, " the accused, in detriment to the individual who is the true " active party, " the one who has been offended, the holder of the rights whose protection is being sought, and imposing on the States the appropriate consequences, in favor of the individual. This framework is important in order to understand the structure of the jurisdiction and why the procedural equation is always the same even though the case might have been presented by the State Party accused of this violation, which State Party does not, therefore, become converted into an " actor " just as it is not the delinquent in penal jurisdiction, even though the State itself has invoked the jurisdiction by submitting itself to be judged; or even though the jurisdiction has been invoked by the Inter-American Commission, which never has the role of a substantial party, accuser or accused but rather a sui generis role, purely procedural, as an auxiliary of the judiciary, like that of a " Ministerio Público " of the inter-American system for the protection of human rights. This latter reason also makes it regrettable that the Court has not been able to have available in this case the reasons that were the bases of the conclusion, succinct and without explanation, of the response of the Commission to the request contained in the Decision of July 22, 1981.
5. I believe, moreover, that the majority opinion is incomplete in setting out in paragraph 27 of the decision the COMPETENCE, ratione materiae, of the Court with respect to the case presented by the Government of Costa Rica; it appears to me to be necessary to explain that the general competence does not come about only from the fact that a specific problem has been presented of a possible violation of human rights guaranteed by the Convention, in the case of Viviana Gallardo and her cellmates, but rather that the possible violation could be prima facie imputed to the Costa Rican state in that it is attributed to an agent under its authority who apparently was on duty, using the juridical and material means of his post ( weapon, access to the cell of the victim, etc. ). This is important to point out because the doubt has been raised in this case whether, because we are dealing with a subordinate authority, the responsibility of the State could not be derived directly from the very act of that subordinate but rather only indirectly, in the event that it is determined that there was a culpable omission on its part in protecting the victims, or in granting reparation and indemnification for the consequences of the act. There also exists the doubt whether, in view of these circumstances, the prior exhaustion of domestic legal remedies is indispensable and, therefore, not capable of being waived. It is my strong belief that violations of human rights attributable to public authorities, in excercise or as a result of their duties, or utilizing the juridical or material means thereof, are per se attributable to the State, aside from the responsibility that it subjectively has due to the bad faith or the fault of the high authorities.
6. With respect to the problem of the STANDING of this Court to hear the case in its present state, I share the opinion of the majority in that, given its general competence, the State of Costa Rica, as a State Party to the Convention, that has furthermore accepted the jurisdiction of the Court in the manner provided for by Article 62, has the procedural standing, in accordance with Article 61( 2 ) of the Convention, to submit the case to the Court, even though it is the State to which the alleged violations are imputed or can be imputed. I also think it important to link this conclusion to the structure that I have already mentioned of the contentious jurisdiction of the Court as one of a condemnatory nature. I also reiterate that the State concerned always plays the role, in the procedure before the Court, of the passive party, the accused, even though the State itself might have lodged the complaint.
7. In addition, regarding the fulfillment of the procedural requirements that determine the admissibility of the action of the Government of Costa Rica and, therefore, of the standing of the Court to hear it in its present state, I agree with the majority opinion in the sense that the exhaustion of domestic remedies is a procedural condition, in principle capable of being waived. I also agree with the decision not to decide on the question of the admissibility of the waiver of Costa Rica in the present case because of the decision of inadmissibility of this case by the Court, so that the Commission might decide it in the first place.
8. But I do not share the reasoning of the majority when it gives as a basis for rejecting the waiver of the Government of Costa Rica of the procedures before the Commission the fact that these procedures are indispensable to guarantee individuals, especially the victims of alleged violations, the full exercise of their interests, in view of the fact that the Convention expressly prohibits them direct access to the Court, and even in the supposition, still not resolved by the Court, that the Court might eventually give them an independent procedural standing once the proceedings have begun. In my case, my dissenting opinion obliges me to express once and for all that, in my judgment, the Convention only bars the individual from submitting a case to the Court. ( Art. 61( 1 ) ). This limitation, as such, is, in the light of the principles, an " repugnant matter " ( materia odiosa ) and should thus be interpreted restrictively. Therefore, one cannot draw from that limitation the conclusion that the individual is also barred from his autonomous condition of " party " in the procedures once they have begun. On the other hand, it is possible, even imperative, to grant to the individual that role and the independent rights of a party that would permit him to exercise before the Court all of the possibilities that the Convention gives him in the procedures before the Commission. However, in my opinion, the lack of procedural standing of the individual to initiate the process is not important because the foregoing presupposes that it already has begun through the action of the Commission or the State that makes the waiver.
9. It could be argued that there is one exception to the possibilities favoring the individual in the procedures before the Commission: that the victim might benefit from a friendly settlement proposed by the Commission that certainly, according to the majority opinion, would not be possible before the Court. But apart from the value, to my mind relative and doubtful, of the procedures of conciliation, which to my way of thinking are rather tilted toward the interests of the States, it cannot be disputed that there always exists the possibility, even with the intervention of the Commission, if not as part of, at least parallel to the procedures before the Court, that it also may result in a withdrawal, a friendly settlement or an extrajudicial agreement, with the advantage that it would have to be approved by the jurisdictional organ. ( Art. 42 of the Rules of Procedures of the Court and the doctrine of Arts. 41( b ), 50( 3 ) and 51 of the Convention ).
10. On the other hand, except for the procedure of conciliation, I believe that nothing that the Commission may be able to do, within the procedures set forth in the Convention, in the interest of an effective protection of human rights, the Court itself may not also be able to do during the proceedings; and do it even better, as its intervention would add certainty and authority to the proceedings and, at the same time, would reduce considerably the length of the proceedings, contributing to the fulfillment of the ideal of prompt and full justicce, the absence of which is one of the most serious and frequent violations of human rights, and source and guardian of almost all of the rest.
11. In conclusion, if I share the reasoning of the decision that, in the instant case, the waiver of the Government of the procedures before the Commission is not admissible, I do not do so because I consider it essential in order to have the best protection of human rights but rather I have come to the conclusion that unfortunately the system of the Convention appears to make it impossible because the American States in drafting it did not wish to accept the establishment of a swift and effective jurisdictional system but rather they hobbled it by interposing the impediment of the Commission, by establishing a veritable obstacle course that is almost insurmountable, on the long and arduous road that the basic rights of the individual are forced to travel.
12. For the foregoing reason, my concurrence in the unanimous decision should be understood in the following terms:
a ) The action submitted by the Government of Costa Rica to this Court in the case of Viviana Gallardo et al. is not admissible because the waiver of the Government of the prior procedures before the Inter-American Commission on Human Rights is not admissible, because unfortunately it does not appear possible to dispense with them in their totality, within the limitations set out by the system of the Pact of San Jose.
b ) In view of the inadmissibility of the principal plea that the Court now hear the matter, the Court should accept the subsidiary plea and send the case to the Inter-American Commission on Human Rights so that it might consider it in accordance with its powers under the Convention.
c ) This Court should also, because of its general competence in the case, retain the application of the Government of Costa Rica on its docket awaiting the procedures before the Commission.
RODOLFO E. PIZA E.
CHARLES MOYER
Secretary
DECISION OF SEPTEMBER 8, 1983
WHEREAS:
1. On November 13, 1981 this Court adopted a Decision, which reads as follows:
"1. Decides, unanimously, not to admit the application of the Government of Costa Rica, requesting the Court to examine the matter of Viviana Gallardo et al.
2. Decides, unanimously, to grant the subsidiary plea of the Government of Costa Rica and to refer the matter to the Inter-American Commission on Human Rights.
3. Decides, unanimously, to retain the application of the Government of Costa Rica on its docket pending the proceedings of the Commission. "
2. On June 30, 1983 the Inter-American Commission on Human Rights adopted a resolution, the relevant parts of which are set out below:
"WHEREAS:
1. Article 48, paragraph 1, clause c ) of the American Convention on Human Rights relating to the procedure established for the processing of individual communications notes that the Commission may declare the petition or communication inadmissible or out of order on the basis of information or evidence subsequently received;
2. Article 32, clauses b ) and c ) of the Regulations of the Commission state that it is necessary in advance to decide on other questions related to the admissibility of the petition or its manifest inadmissibility based on the record or submission of the parties and whether grounds for the petition exist or subsist and, if not, to order the file closed;
3. From the evidence subsequently received by the Commission, in particular, the replies submitted to it for consideration by the Government of Costa Rica; the study of letter No.034-81 from the Office of the Procurator General of the Nation; the formal inquiry request presented by the fiscal agent of San Jose; the sentences handed down in the case against Jose Manuel Bolaños for the crimes of qualified homicide, aggravated assault and simple assault of Viviana Gallardo, Alejandra Bonilla Leiva and Magaly Salazar Nassar; and the investigation conducted by the Director of Judicial Investigations, it is clear that the Government of Costa Rica has acted in conformity with current legal provisions and punished with full force of law the person responsible for the acts charged;
4. In view of the foregoing, the petition advanced is manifestly out of order since the grounds that led to its introduction no longer subsist, as required by Article 48, paragraph 1, clause c ) of the Pact of San Jose and Articles 32 b ) and c ) of the Regulations of the Inter-American Commission on Human Rights;
5. The institutional system for the protection of human rights established in the Convention for the processing of petitions or communications, within the limits set for it, and to which the States Parties have voluntarily agreed to abide, operates, except in cases specifically provided for in the Convention itself, in lieu of the domestic legal system, in accordance with generally recognized principles of international law,"
"RESOLVES:
1. To declare inadmissible the petition made in the present matter, under the terms of Article 48, paragraph 1, clause c ) of the American Convention on Human Rights.
2. To communicate this Resolution to the Government of Costa Rica and to the Inter-American Court of Human Rights.
3. To close the file on this matter, as provided for in Article 32( c ) of the Regulations of the Inter-American Commission on Human Rights.
4. To include this Resolution in its Annual Report to the General Assembly in accordance with the terms of Article 59( g ) of the Regulations of the Commission."
"AND WHEREAS:
The reasons given on which the Resolution of the Inter-American Commission on Human Rights is based lead to the conclusion that, the Commission having rendered its decision in the manner set forth, there is no reason, under Articles 61( 2 ) and 48 through 50 of the Convention for the case to remain on the docket of the Court,"
NOW, THEREFORE, THE INTER-AMERICAN COURT OF HUMAN RIGHTS RESOLVES BY A DECISION OF SIX VOTES TO ONE:
1. To strike from its docket " In the Matter of Viviana Gallardo et al. "
2. To close the file on this matter.
3. To communicate this Resolution to the Government of Costa Rica and to the Inter-American Commission on Human Rights.
Nothing in this order is to be understood as being intended to affect the right of any interested individual from resorting to any and all remedies that the laws of Costa Rica may provide.
Done in English and Spanish, the Spanish text being authentic, at the seat of the Court in San Jose, Costa Rica, this eighth day of September, 1983.
PEDRO NIKKEN
President
THOMAS BUERGENTHAL
HUNTLEY EUGENE MUNROE
MAXIMO CISNEROS
CARLOS ROBERTO REINA
RODOLFO E. PIZA E.
RAFAEL NIETO NAVIA
CHARLES MOYER
Secretary
DISSENTING OPINION OF JUDGE RODOLFO E. PIZA E.
I dissent from the decision of the majority and, based on Article 66( 2 ) of the American Convention on Human Rights and 46( 4 ) of the Rule of Procedure of the Court, I prepare my separate or dissenting vote, in the following terms:
1. Viviana Gallardo Camacho, Alejandra Bonilla Leiva and Magaly Salazar Nassar, Costa Ricans, were detained by the Judicial Investigation Organ ( OIJ ) of the Republic of Costa Rica, on grounds of association with a terrorist or seditious organization, and placed, through the intermediary of the Public Ministry, at the disposal of the appropriate ordinary proceedings court. For security reasons, they were kept in a cell of the General Directorate of the Civil Guard. Among the charges against her, Viviana was personally charged with the homicide, of a repugnant nature, of a member of that Civil Guard, which event produced a wave of indignation in Costa Rica in general and within the ranks of the Civil Guard and public law enforcement agencies in particular.
2. On July 1, 1981, Civil Guard Corporal Jose Manuel Bolaños Quesada, who was not in charge of custody of the detained persons, succeeded in reaching the door of their cell and fired a machine gun through the watch door, causing the death of Viviana and the wounding of her companions, Alejandra and Magaly.
3. Press articles and the public charges of the victims and their relatives suggested, in brief, that the Government of the Republic might have been responsible: a ) because the events were committed by an agent of the authority, if not in the exercise of his duties, then at least on the occasion of performing the same and using juridical and material means at his disposal ( access to detain persons, regulation weapon, uniform, position and so forth ); b ) because keeping them in a detention center of the Civil Guard, within the reach of the companions of the murdered agent, and under precarious conditions of safety, seemed to point to grave imprudence which could have facilitated the violation; c ) because their detention in an unusual and inadequate center, and having the three together in a cell of minimum dimensions and without conditions of hygiene and comfort, could constitute cruel, inhuman or degrading treatment; d ) because, furthermore, the OIJ was specifically charged with mistreatment, both physical and psychological, of the detained persons of such a type as to be termed torture.
4. Through its Minister of Justice, the Government of Costa Rica announced, in a telegram dated July 6, 1981, and formally submitted the case, in a brief dated the sixteenth, directly to the Court, invoking Article 62( 3 ) of the American Convention, to have this Court decide whether the events constituted a violation by national authorities of the human rights protected in Articles 4 and 5 of the Convention or of any other right protected in that international instrument.
5. In that same brief, for the express purpose of having the Court take up immediately, and without any procedural impediment, the case submitted to it, the Government formally waived: a ) the requirement of full pursuit of all remedies under its domestic law ( Art. 46( 1 )( a ) of the Convention ); and b ) the requirement of prior exhaustion of all procedures provided for in Articles 48 to 50 of the Convention ( procedure before the Inter-American Commission on Human Rights; Art. 61( 2 ) of the same ). It further requested, secondarily, that if the Court decided, before it took up the petition, that the aforementioned procedures should be carried out in full, the case be submitted to the Commission for all matters within its competence.
6. Given the peculiar features of this matter, the Court opened a preliminary a hearing on " the jurisdiction of the Court to deal with the case at this stage " ( Decision of July 22, 1981 ), and, after hearing the Government of Costa Rica and the Commission, it decided:
"NOW, THEREFORE, THE COURT:
1. Decides, unanimously, not to admit the application of the Government of Costa Rica, requesting the Court to examine the case of Viviana Gallardo et al.
2. Decides, unanimously, to grant the subsidiary plea of the Government of Costa Rica and to refer the matter to the Inter-American Commission on Human Rights.
3. Decides, unanimously, to retain the application of the Government of Costa Rica on its docket pending the proceedings of the Commission. ( Decision of November 13, 1981 )."
I agreed with that unanimous decision, although I formulated an explanation of vote on the considerations that led up to its adoption, virtually all of which were clarifying in nature.
7. Simultaneously with the presentation of the case by the Government, the Court received charges or individual claims from the parents of Viviana and Magaly, requesting specifically the intervention of this Court and accusing the Government of keeping the prisoners in a situation at odds with their dignity and under precarious safety conditions that facilitated the murder of the first and the wounding of the other two, as well as charging the investigation authorities with having used cruel, inhuman and degrading treatment and methods of torture against them.
8. The Court, having seen that the ability to submit a case to the Court is confined, by the Convention, to the Commission and the States Parties ( Art. 61( 2 ) ), abstained from processing these charges. However, in furtherance of a decision adopted in general and applied consistently since 1979, and in the interest of facilitating the protection of human rights that is the object and purpose of the Convention, the Court took them as submitted and referred them to the Commission.
9. The Commission processed the petition of the Government, collected from the Government the pertinent information and held a hearing on that information for at least one of the interested persons, the mother of Viviana; on each occasion, the Commission noted that the proceedings did not necessarily constitute a decision on the admissibility of the case ( CIDH, Res. No. 13/83 of June 30, 1983, paras. 5 to 16 ); this decision is one that, it would appear, has never been made, not on the legal standing of the Government or of the third parties, not on the object or content of their petitions, not on the waiver of the Government of prior exhaustion of its domestic remedies or other procedural requirements, and not on the competence of the Commission itself.
10. At a determined time, the Commission was satisfied with the explanations presented by the Government of Costa Rica, and considered them sufficient to take as demonstrated the " manifest inadmissibility " ( sic ) of the petition, and stated, " the Government of Costa Rica has acted in conformity with the current legal provisions and punished with full force of law the person responsible for the acts charged " ( Ibid., " Preamble, " para. 3 ).
11. Even though these reasons would seem to be laying, naturally, the foundation of a type of a basic dismissal, though not of inadmissibility, strictly speaking, on procedural grounds, the fact is that the Commission decided formally:
"1. To declare inadmissible the petition made in the present matter, under the terms of Article 48, paragraph 1, clause c ) of the American Convention on Human Rights.
2. To communicate this Resolution to the Government of Costa Rica and to the Inter-American Court of Human Rights.
3. To close the file on this matter, as provided for in Article 32( c ) of the Regulations of the Inter-American Commission on Human Rights.
4. To include this Resolution in its Annual Report to the General Assembly in accordance with the terms of Article 59( g ) of the Regulations of the Commission. ( Ibid. )."
12. The Court is faced now with a fundamentally procedural problem: the problem is that the Court itself, in refusing to admit the petition of the Government of Costa Rica, did not confine itself to rejecting it, and referring it or not to the Commission, but, furthermore, reserved the right to hear it by deciding, " to retain the application of the Government of Costa Rica on its docket pending the proceedings of the Commission " ( Decision of November 13, 1981 ), a decision which gave the specific meaning of retaining " the case on its docket until the conditions that have made it inadmissible in its present state have been complied with. " ( Ibid., para. 28 ). If it were not for this, the simple inadmission of the case by the Court would allow it now to assume the legal ineffectiveness and virtual nonexistence of the submission of the case by the Government of Costa Rica to the Court, so that at this time the case would be no different from any other brought directly before the Commission, which the Court may not take up until such time as the case is submitted to it by the Commission or by a State Party ( Costa Rica or some other ) once all the prior requirements for the Court are exhausted. ( Arts. 61( 1 ), 61( 2 ) and 62 of the Convention ).
13. Nevertheless, the reservation was made and while the reservation could be interpreted in different ways, what may not be done is ignore the reservation and attach to the resolution of the Court that formulated it, the same meaning it would have had if the reservation had not been formulated. Put in another way, because the Court made the reservation, it has to have a valid meaning and a valid scope because the Court is the only judge of its own legality, and the meaning and scope must be effective because it is not conceivable that what it resolves has no application. However, the vote of the majority does not explain this nor does it attempt to explain this, therefore allowing the interpretation that it ignores it, and my chief dissent rests on this basis.
14. This is likewise the source of the unusual length of this separate vote because, in my opinion, one must not fail to answer now a number of questions, which I take the liberty to summarize as follows: a ) What meaning and scope does that reservation to hear by the Court have in terms of the jurisdiction and competence of the Court and of the content of the petition from the Government of Costa Rica that led up to it? b ) As that reservation was attached by the Court to completion of processing by the Commission, when should that processing be considered completed for the purposes of Article 61( 2 ) of the Convention? c ) Can this interpretation be given to Res. 13/83 of the Commission which provided, " to declare inadmissible the petition...( and ) to close the file on this matter? " ( Ibid., operative paras. 1 and 3 ). d ) If it can, should the Court officially take up its consideration of the matter, without need for a new petition from the Government, the Commission or another government? e ) If it should, what preliminary questions have to be resolved and what procedures should be followed?
15. In its Decision of November 13, 1981, the Court clearly circumscribed the question at that time to a matter of simple " procedurability, " admissibility " or " competence to take up the case 'in its current state.' In this connection it said quite clearly: " The inadmissibility of the application that the Government instituted does not, therefore, turn strictly on the lack of jurisdiction of the Court to hear the case but rather on its failure to fulfill the prodecural requirements that must be met so that the Court may begin to hear the case. " ( Ibid., para. 28 ). Quite clearly this was also the basic reason the Court reserved its right to hear the case, as it said. ( Ibid., in fine ).
16. The Court considered specifically two requirements of procedurability of the petition regarding which the Government of Costa Rica issued its waiver: one, general in nature, the requirement of prior exhaustion of all remedies under domestic law imposed by Article 46( 1 )( a ) of the Convention, as it pertains to the Commission, directly, and to the Court itself, indirectly, a requirement that the Court took as subject to waiver in general ( Decision of November 13, 1981, para. 26 ); the other was the requirement of prior exhaustion of the procedures provided for in Articles 48 to 50 of the Convention -procedures before the Commission- as established by Article 61( 2 ) of the Convention before appearing before the Court that, on the other hand, took them as necessary and, therefore, not subject to waiver. ( Ibid., paras. 14, 20 and 25 ). By deciding only on the latter point and rejecting the case on the ground of its nonfulfillment, in an express manner it omitted doing so formally with respect to the first point, having seen that, " because we are dealing with the admissibility requirements of a complaint or application before the Commission, it is in principle for the Commission to decide in the first place to pass on the matter. " ( Ibid., para. 27 ).
17. It was, then, in relation to the necessary and irrevocable requirement of prior procedure before the Commission that the Court reserved its right to take up the matter with which it established, in my opinion, in all clearness and correctness, a simple " procedural subordination, " but not a " material subordination " before the Commission. Put in another way, it is obvious that the Court, in recognizing the general importance and procedural need for the proceedings before the Commission, definitely took into account, the impossibility of putting it aside or dismissing it in its entirety and, at the same time, the Court had in mind two implicit but unequivocal principles: one, that this procedural requirement does not make the Commission into a Court or the proceedings before the Commission into a kind of jurisdictional " first appeal " ; two, the Commission lacks the preclusive jurisdictional powers of the Court, which is the only Court in the system to protect the human rights safeguarded in the Convention. In this sense, it is said, for example, " if, thereafter, in the course of the judicial proceedings there is a dispute relating to the question of whether the admissibility requirements before the Commission have been complied with, it will be for the Court to decide, which for that purpose it has the power to accept or reject the views of the Commission in the manner analogous to its power to accept or reject the Commission " s final report. " ( Ibid., para. 27 ). This is nothing other than affirming the " plenary " and " unique " character of the jurisdiction of the Court.
18. Thus, the reservation of the right to hear the case declared by the Court means, in my opinion, that the petition of the Government of Costa Rica remains in effect, with the effect that the resolution expressly gave it, that is " submission of the appeal " to the Court, even though " procedurally subordinate, " in other words, suspended but submitted, retained but pending, latent but alive, " pending the proceedings of the Commission " ( Ibid., operative para. 3 ), so that, once the latter processing is completed, the petition would regain its standing as the effective and legitimate necessary action to initiate the contentious jurisdiction of the Court, in accordance with Article 61( 1 ) of the Convention, the Court should simply take up the case again even if it were to declare once more that the case was inadmissible on other grounds.
19. In view of the foregoing conclusion, this is a matter, then, of determining when the prior procedure before the Commission is to be considered completed, specifically for the purposes of admissibility of the case to the Court, in accordance with Article 61( 1 ) of the Convention. Normally, of course, this procedure assumes a series of steps culminating in the final report provided for by Article 50( 1 ) of the Convention, starting with which the matter may be brought to the Court by the Commission or by the " State concerned. " ( Art. 51( 1 ) ).
20. However, the Commission may again declare the case inadmissible ( Arts. 47 and 48( 1 )( a ) or ( c ) ) or, in the proceedings stage, decide to order the file closed because the grounds of the petition or the communication no longer exist or subsist ( Art. 48( 1 )( b ) ), or consider it satisfied by a friendly settlement ( Art. 49 ), in which case there must be a resolution from the Commission itself, which, without producing the final report of Article 50( 1 ), brings the proceeding to an end and makes its continuance impossible; it may even leave the case abandoned by inertia, with no resolution. It is in such suppositions where a problem occurs in the sense of the requirement established by Article 61( 2 ), that is, " In order for the Court to hear a case, it is necessary that the procedures set forth in Articles 48 to 50 shall have been completed, " because it is obvious that a purely literal interpretation of this rule could lead to the conclusion that no case may reach the Court without those procedures having been performed and completed in each and every one of their stages, and therefore, that the Commission does have preclusive powers over the jurisdiction of the Court, merely by resolving a case at any moment before the final report of Article 50( 1 ) or, including, abandoning the case without allowing it to reach the Court.
21. In my judgment, this is one of the cases in which a correct interpretation of the rules " in their context and in the light of its object and purpose " ( Vienna Convention on the Law of Treaties, 1969, Art. 31( 1 ) ), requires not only the application of definitive criteria of reasonability and justice in the light of the principles of law on human rights, but also the use of techniques taken from procedural law in general. Both of these apply, so that the interpretation does not become an obstacle but an adequate instrument for achievement of the supreme reason for being and the purpose of these rules, which is none other than the best protection of the fundamental rights of man. For this they were made, and if they do not serve for this, they do not serve for anything.
22. In the light of these criteria, it seems simple to me to conclude that the procedures before the Commission are completed and, therefore, the administrative and preventive intervention of the Commission as a requirement for procedurability before the Court is achieved when the Commission puts an end to them, either through the final report of Article 50( 1 ), or by means of a resolution or even some inactivity that ends them; at least by a resolution to which could be applied, by analogy, the principles that procedural law has set down in order to treat as final acts the so-called " writs in the nature of a verdict, " precisely because they resolve interlocutorily a process and make its continuance impossible; this is particularly true when it deals as it does here, with preventive or preliminary procedures, and not exactly jurisdictional ones, which also should be applied restrictively in view of basic principles such as the principle of access to justice and that procedural formalities and requirements should always be interpreted in the most favorable meaning for resolution of the basic questions at hand -the pro sententia principle of general procedural law. Limitations and the traditional reluctance toward international jurisdiction have no place in the international law of human rights.
23. These conclusions do not seem to me inconsistent with the opinions already advanced by the Court itself when it clearly warned in its Decision of November 13, 1981 that, " It is, therefore, not a question of deciding whether these procedures have been exhausted or when they might be considered to have been exhausted, but strictly one of determining whether the procedures can be avoided by the mere unilateral waiver of the State concerned " ( Ibid., para. 21 ), as well as when it granted decisive interpretative importance to the need to conciliate, " first, the interest of the victims that the full enjoyment of the rights they have under the Convention be assured and protected; second, the need to safeguard the institutional integrity of the system that the Convention establishes " ( Ibid., paras. 13 and 14 ), so that, " the Convention be interpreted in favor of the individual, who is the object of international protection, as long as such an interpretation does not result in a modification of the system. " ( Ibid., para. 16 ). Actually, if the Court considered that the procedure before the Commission is essential and, therefore, irrevocable as a whole, it was primarily because it believed that the intervention of the Commission was not conceived in the exclusive interest of the state but in the interest of the " institutional integrity of the protective system guaranteed by the Convention...( and allowed ) the exercise of important individual rights, especially for those of the victims. " ( Ibid., para. 25; in general, paras. 21 to 25 ).
24. The foregoing leads me to the conclusion that Res. 13/83 of the Commission, in declaring the inadmissibility of the petition of the Government of Costa Rica and ordering the file closed not only formally exhausted the procedures before the Commission but also exhausted them materially, leaving without any possible later satisfaction the purposes of better protection of the human being and the rights which the Court attributed to him in its Decision of November 13, 1981. This, in my judgment, would be true in every case although the Commission actually would have limited itself to declaring the inadmissibility of the matter; this is much more the case if one takes into account that, in fact, what the Commission did was resolve the basic question by ruling on it with a mistaken term. ( See para. 11, supra ).
25. Consequently, it is my opinion that because the condition set by the Court itself has been met, by reserving for itself the right to take up the petition of the Government of Costa Rica " pending the proceedings of the Commission, " the appropriate procedure now is simply to take up the case again, considering that the procedurability requirement has been met. Afterward, the Court could, in theory, reach any conclusion on the case, including the decision to order the file closed, but it may not do so, in any fashion, without taking it up again and, therefore, without resolving, on sound reasoning as a Court should always do, a number of questions that require it, in turn, to examine the validity and content of the decisions of the Commission, and to establish what must be said and what must be reserved for the verdict. Any finding to the contrary would be the same as falling into a true " absolution of the appeal. "
26. Several procedural errors have already been pointed out: the error of processing the case over an extremely long period of 18 months without reaching any decision on its admissibility even though, in accordance with the Convention, the mere initiation of this procedure assumes normally that the Commission " considers the petition or communication admissible " ( Art. 48( 1 )( a ) ); the error of never deciding on fundamental aspects such as the legitimation of the government and of third parties, the waiver by the government of the prior full pursuit of its domestic remedies and the competence of the Commission itself; and the error of ending by declaring the case inadmissible when in fact what it did was to resolve it by dismissing it for being inadmissible. Besides these errors, the Commission incurred defects of merit that must be described here.
27. First, as for the major facts, namely, the murder of Viviana Gallardo and the woundings of Alejandra Bonilla and Magaly Salazar, by the act of a member of the Costa Rican Civil Guard. The Commission took as proven and adequate that the Government had taken pains to promote the corresponding penal action against the perpetrator of these acts who was sentenced to 18 years of imprisonment ( CIDH, Res. 13/83, " Background, " para. 13 ). However, it did not take due account of the fact, according to the background, that the acts were the work of an agent of public authority who, if not in the exercise of his duties, was at least on the occasion of those duties and was using means, both juridical and material, under circumstances such that, if the investigation that has not been carried out would not point to other responsible persons, would be sufficient to presume that there was an occurrence of a serious violation of the rights of the victims, chargeable to the State of Costa Rica as such, and, in consequence, would appear to call for an express decision on the responsibility of that State, the sole subject of the case liable to condemnation and punishment under the international order of the protection of human rights.
28. In fact, by resolving as it did, the Commission appears to have set down, without complete explanation, a thesis that is unacceptable to me that the violations of human rights do not occur when they occur because they are always the act of specific individuals, in flesh and blood, even though they act as public officers at any level, except when and only when, the state does not sanction and take heed of them, which consideration is practically affirming that the only violation chargeable to the state, by specific deeds at least, would be the so-called " denial of justice, " or, what is the same thing, that if there is no denial of justice, the violation is not consummated. This is not true even of violations committed by private persons because even in these cases it is possible to redirect responsibility to the state not only when it does not sanction or take heed, but also when it fails or is deficient in the protection that it is obligated to extend to the victims before they become such. However, it is much less true of violations committed by public authorities, regardless of their rank or character, because their deeds are chargeable to the state itself, either directly, by their functional acts, or indirectly, by those they perform under conditions such that law attributes to their responsibility, either subjective or objective.
29. Second, another point that warrants attention is that the Commission would dismiss the case as it concerns the alleged tortures or mistreatments to Viviana and her companions attributed to members of the Judicial Investigation Organ ( OIJ ), without taking the question to the depths of a true investigatory proceeding, and taking as nonexistent or unproven these violations on the basis of the conclusions of an investigation presumably made by the very organization accused of committing them or, verbatim, in which " according to information gathered by the director of that organ, there was no wound of that type. " ( Ibid., para. 14 ). In this sense, it would be appropriate to ask: What legally relevant differences exist between the Costa Rican authorities, as they are considered in the resolution of the Commission, and those of other American nations who are condemned as torturers even though they and their governments affirm that they investigated the tortures and denied them as nonexistent or unproven? Why should a police organ of Costa Rica enjoy legally greater credibility than one from any other country of the Americas? Costa Rica, precisely because of the widespread recognition it enjoys as a nation that respects human rights, not only should decline such an unsubstantiated privilege of credibility but even reject it because, besides being a privilege, it winds up not proving anything or favoring that country in any way.
30. Third, the Commission did not even ask about other important aspects of the case that had been pointed out in some way or another. Specifically, it did not look into the possibility that keeping the victims at a Civil Guard detention center under precarious security conditions and within the reach of the companions of the agent whose death was attributed to Viviana would signify manifest imprudence that could have facilitated this violation and would have added to the objective responsibility of the state, a subjective responsibility of the Government for negligence or " custodial culpability " ( see para. 3( b ), supra ); neither was the question raised of the possibility that the detention of the victims in an abnormal and inadequate center, the three together in a very small cell with poor hygienic conditions might constitute cruel, inhumane and degrading treatment in the terms of Article 5( 2 ) of the Convention. ( See para. 3( c ), supra ). Not one word of this is mentioned even in the resolution of the Commission.
31. Finally, the Commission also did not consider the individual consequences that the Government of Costa Rica's waiver of the prior exhaustion of domestic remedies could have on the basic issue. If this waiver is valid and in order, it suggests at least the need to diminish the importance of any process that has been carried out or could be carried out before Costa Rican courts because, on one hand, nothing prevents that process from being carried out at the same time and not in advance of the international procedures and which, furthermore, would not be necessary or prove the events, not even to establish the juridical consequences of those events as the Government, in preparing its waiver, expressly accepted that these events would be raised for the first time and in an immediate fashion before international courts. Without doubt, as the Commission said, " the institutional system for protection of human rights established in the Convention...operates, with the exception of cases protected in the Convention itself, in lieu of the domestic legal system, in accordance with generally recognized principles of international law " ( Ibid., " Preamble ", para. 5 ); but these same principles of international law have given the broadest possible protection to the waiverability of the prior exhaustion of remedies under domestic jurisdiction as the Court has already pointed out in this same case ( Decision of November 13, 1981, para. 26 ) and, if that waiver is admissible and in order, when it does occur, it is no longer possible to sustain the subsidiary nature of principle with respect to the means of international protection of rights because the beneficiary state itself has abandoned it.
32. In its Decision of November 13, 1981, the Court considered a series of factors that, while not all are covered in a formal decision, allowed it to express rather definitive judgments about its own jurisdiction and competence and about the admissibility of the case at that time. These criteria, coupled with the others that I set out in my explanation of vote on the same resolution, seemed applicable and practically adequate to me to base now my conclusions on the conditions of the case as its stands now:
33. First, in connection with its jurisdiction, the Court thought, " this case presents the question of whether or not there was a violation of the human rights guaranteed in the Convention, attributable to a State ( Party ) " ( Ibid., para. 28 ); this enabled me to clarify once and for all that the action taken by the Government of Costa Rica " clearly requires the Court to exercise its CONTENTIOUS JURISDICTION; a jurisdiction that, in my opinion, the Convention organizes and regulates as ordinary, giving it an obvious condemnatory nature, as in penal jurisdiction " ( Ibid., Explanation of Vote, para. 4 ), and liable, as such, to result in some later estimative verdict under the terms of Article 63( 1 ) of the Convention itself.
34. The Court also recognized expressly its competence to hear the case. This competence grew out of: a ) the fact that " this is a case that involves the application and interpretation of the Convention, especially its Articles 4 and 5, and is therefore, ratione materiae, within the scope of the Court's jurisdiction " ( Ibid., para. 28 ); b ) the fact that the case could imply a " violation of the human rights guaranteed in the Convention, attributable to a State ( Party ) that has recognized as binding, ipso facto, and not requiring special agreement, the jurisdiction of the Court " ( Ibid. ); c ) that the case " has been submitted by a State Party and thus fulfills the requirement of Article 61( 1 ) of the Convention. " ( Ibid. ). With respect to the second point, I expressly stated that " the possible violation could be, prima facie, imputed to the Costa Rican state in that it is attributed to an agent under its authority who apparently was on duty, using the juridical and material means of his post ( weapon, access to the cell of the victim, etc. ) " and further emphasized, " the violations of human rights attributable to public authorities, in the exercise or as a result of their duties, or utilizing the juridical or material means thereof, are per se attributable to the State, aside from the responsibility that it subjectively has due to the bad faith or the fault of the high authorities. " ( Ibid., Explanation of Vote, para. 5 ).
35. In connection with the legality of the Government of Costa Rica to introduce the case, which the Court also accepted, my belief that this question involves a condemnatory jurisdiction allowed me an affirmative conclusion by permitting me to understand why a " case, " in the strictest sense, may be brought before the Court not only by the Commission or any State Party against another that is charged with a violation of the human rights protected by the Convention, but also by the latter, in a certain sense, against itself. This possibility, in effect, is not only expressly provided for in Article 51( 1 ) of the Convention, as it relates to the report of the Commission, which may be adverse to the " state concerned, " but even if this is not so, there is no reason to deny it the authority to bring the case to the Court, and not only is this provided for in general, in the implicit terms of Article 61( 1 ) ) of the Convention, which grants the power to act before the Court to a " State Party, " without discrimination toward the very state involved, but it is also clear from the very nature itself of the contentious jurisdiction of the Court.
36. In effect, as I said, the specific object of that sanctioning or condemnatory jurisdiction " is not that of defining the right in question but rather that of reestablishing the violated right, specifically deciding whether there has been a violation of the rights guaranteed by the Convention that can be imputed to a State Party which in every case is the " passive party, " the accused, in detriment to the individual who is the true " active party, " the one who has been offended, the holder of the rights whose protection is being sought, and imposing on the states the appropiate consequences, in favor of the individual...( so that ) the procedural equation is always the same even though the case might have been presented by the State Party accused of the violation, which State Party does not, therefore, become converted into an " actor " just as it is not the delinquent in penal jurisdiction, even though the State itself has invoked the jurisdiction by submitting itself to be judged.... " ( Ibid., para. 4 ).
37. With respect to the concrete requirements of admissibility of the case in its present circumstances, suffice it to repeat simply that the Court, in its Decision of November 13, 1981, practically admitted that all of these requirements had been met except the one that I now take as complied with, that is, the prior procedure before the Commission. The other requirement considered by the Court at that time, prior exhaustion of remedies under domestic law, was already, as noted, appraised in the sense of accepting its waiverability and, as a result, the validity of the waiver made by the Government, when the Court said: " In cases of this type, under the generally recognized principles of international law and international practice, the rule which requires the prior exhaustion of domestic remedies is designed for the benefit of the State, for that rule seeks to excuse the State from having to respond to charges before an international body for acts imputed to it before it has had the opportunity to remedy them by internal means. The requirement is thus considered as a means of defense and, as such, waivable, even tacitly. A waiver, once effected, is irrevocable. " ( Decision of November 13, 1981, para. 26 ).
38. Obviously, the Court also said that " the application of this general principle may differ from case to case " ( Ibid., para. 27 ), by which it did nothing but establish a prudent reservation which I share, regarding certain cases and certain violations that might not be clearly described if the mechanisms of domestic law have not been put into action in advance. A typical case would be that in which the alleged violation was precisely a " denial of justice, " a point that is not described except in terms of impossibility of obtaining satisfaction through those domestic remedies; another could be, under determined circumstances, the alleged violation of rights by private persons in which it appears to be essential to have denial of justice in order to return it to the state. But I do not find in the present case any exceptional reason to break with the principle of waiverability of domestic remedies and, as a consequence, because this is the only question that needs to be resolved about the admissibility of the case, I clearly declare myself in favor of recognizing it.
39. Given the admissibility of the case, which I favor, the only point left to be determined is its procedural link, for which it is necessary to establish who, in my judgment, the parties in the substantial sense are, as I said, independently of which of them has been the one that made the appeal: a ) the State of Costa Rica as the " passive party, " which is charged with the violations and is the eventual debtor of its reparation ( see para. 36, supra ): in the international order of the protection of human rights, the state is the only subject that may be found guilty and punished; and b ) as the " active party, " the person entitled to the rights claimed and, therefore, the creditor of any eventual estimatory sentence, the victims, that is, specifically the heirs of Viviana Gallardo and Alejandra Bonilla Leiva and Magaly Salazar Nassar, for themselves. ( Ibid. and see also Art. 63( 1 ) of the Convention, which speaks of the " injured party " ). The Commission is not a party in any substantial sense because it is not the holder of the rights or the duties that might be or can be declared or constituted by the verdict.
40. Now, in reference to the parties in the procedural sense: a ) the State of Costa Rica is clearly such a party, in its plenitude, but always as " passive party, " the defendant or the accused, even though it itself initiated the proceeding; b ) there is no valid reason to refuse to the victims, the substantial " active party, " their independent condition of " active party " in the proceedings. In this sense, it seems sufficiently clear to me what I said in my earlier separate vote that, in my judgment, the Convention only bars the individual from submitting a case to the Court. ( Art. 61( 1 ) ). This limitation, as such, is, in the light of the principles, a " repugnant matter " ( materia odiosa ) and should thus be interpreted restrictively. Therefore, one cannot draw from that limitation the conclusion that the individual is also barred from his autonomous condition of " party " in the procedures once they have begun. On the other hand, it is possible, even imperative, to grant to the individual that role and the independent rights of a party that would permit him to exercise before the Court all of the possibilities that the Convention gives him in the procedures before the Commission. ( Ibid., Explanation of Vote, para. 8 ); c ) as concerns the Inter-American Commission, which must appear in all cases before the Court ( Art. 57 of the Convention ), this is clearly a sui generis role, purely procedural, as an auxiliary of the judiciary, like that of a " Ministerio Público " of the inter-American system for the protection of human rights. " ( Ibid., para. 4 ).
41. In view of the clear design of that procedural structure, every other party legitimated by the Convention in the proceedings before the Convention, such as third parties, private persons or even states ( Arts. 44 and 45 ), should have, in principle, a position before the Court but always and simply " procedural " and as " co-assistant " of the action. This is the case of the mother of Viviana, Vilma Camacho de Gallardo, and the parents of Magaly, Fernando and Rose Mary de Salazar. Likewise, also for reasons of principle, I believe that legitimation should be extended to Jose Manuel Bolaños Quesada, as the authority personally responsible for the alleged violations, to intervene in the proceedings, but not as a " principal party, " considering that the verdict would not touch him except as " passive co-assistant. "
42. Based on the foregoing and the reasons set out, I formulate my SEPARATE OR DISSENTING VOTE in the following terms:
HAVING SEEN the petition of the Government of Costa Rica dated July 16, 1981, to have this Court take up and resolve the case of Viviana Gallardo, Alejandra Bonilla Leiva and Magaly Salazar Nassar;
The Decision of November 13, 1981 of the Court which declared the procedural inadmissibility of the petition, ordered its referral to the Inter-American Commission on Human Rights, and retained its right to hear it pending processing by the same Commission;
The resolution of the Commission No. 13/83 of June 30, 1983, which declared the petition inadmissible and decided to order the file closed;
IN MY OPINION, the Court should declare:
1. That, by reason of the resolution of the Commission 13/83 of June 30, 1983, the procedures provided for in Articles 48 to 50 of the American Convention on Human Rights are juridically exhausted;
2. That, in consequence, as the condition of procedurability imposed by Article 61( 2 ) of the Convention is complied with and, in accordance with the Decision of November 13, 1981 of the Court, to take up again the petition presented by the Government of Costa Rica;
FURTHERMORE, as the Resolution of the majority puts an end to the matter and orders the file closed, I believe that I should add the following additional points:
3. To declare that this is a " case " that falls under the ordinary contentious jurisdiction of the Court, whose object is to determine whether or not any violation of the human rights of the victims has been committed, chargeable to the State of Costa Rica as a State Party to the Convention, and to impose, if necessary, the consequences provided for in Article 63( 1 ) of the Convention.
4. To declare that the Court is competent to hear the case, because the case is one relating to the interpretation and application of the Convention against a State Party that has accepted the binding jurisdiction of this Court under the terms of Article 62 of the Convention.
5. To declare that the Government of Costa Rica was and is legally entitled, pursuant to Article 61( 1 ) of the Convention, to submit the present case to the Court, even though it deals with possible violations of human rights eventually charged to that same Government or State of Costa Rica.
6. To declare admissible the waiver made by the Government of Costa Rica of the requirement of prior exhaustion of the remedies under its domestic law and, as a consequence, to consider as complied with the procedurability condition set out in Article 46( 1 )( a ) of the Convention.
7. In consideration of the foregoing and that there are in this case no other apparent problems of procedurability, to declare admissible and to accept the petition of the Government of Costa Rica, and to process it accordingly.
8. To take as parties in this case, invested by their own independent legality: a ) the State of Costa Rica, as the defendant and eventual party responsible for the facts in question; b ) the legitimate successors of Viviana Gallardo, Alejandra Bonilla Leiva and Magaly Salazar Nassar, as injured parties and the holders of the human rights implicated and the eventual creditors of their reparation; c ) the Inter-American Commission on Human Rights, as a necessary party, as a " Ministerio Público " of the system of protection of human rights protected by the Convention. Further, to have as associated parties: d ) the mother of Viviana, Vilma Camacho de Gallardo, and the parents of Magaly, Fernando and Rose Mary de Salazar, already described as active coassistants; and e ) Jose Manuel Bolaños Quesada, if he would appear as passive co-assistant.
RODOLFO E PIZA E.
CHARLES MOYER
Secretary