3.        Advisory Opinions


                         Advisory Opinion OC-19


629.    On 28 November 2005 the Court issued Opinion in the proceeding OC-19, initiated by the Bolivarian Republic of Venezuela, which had requested the answer to the following questions: 

1.      Is there or not, an organ within the Inter-American System of Human Rights that has the competences necessary to exercise control of legality of the actions of the Commission [...], before which can appear the State Parties to the Convention in the defence of legality?


2.       Should that organ exist, [Venezuela] would like to know: which is that organ and which are its attributions?

630.      The Tribunal entitled its Opinion “Control of Legality in the Exercise of the Attributions of the Inter-American Commission on Human Rights (Articles 41 and 44 to 51 of the American Convention on Human Rights), and expressed therein  

1.       That the Inter-American Commission on Human Rights, as organ of the Inter-American System for the protection of Human Rights, has full autonomy and independence in the exercise of its mandate in conformity with the American Convention on Human Rights.


2.       That the Inter-American Commission on Human Rights acts within the legal framework established by the American Convention on Human Rights in the exercise of the functions that are incumbent upon it in the procedure concerning the processing of individual petitions, established in Articles 44 to 55 of the Convention, as well as the exercise of its other attributions destined to the promotion and protection of human rights, enshrined in Article 41 of the said instrument.


3.       That the Inter-American Court of Human Rights, in the exercise of its functions, carries out the control of legality of the acts of the Inter-American Commission on Human Rights in what concerns the processing of matters that are under the cognizance of the Court, pursuant to the competencies that are granted to it by the American Convention and other Inter-American instruments for the protection of human rights.

631.      The considerations upon which the Court based its Opinion are as follows: 

26.      In the attention of individual petitions, the Commission must respect the guidelines established by the OAS Charter (Article 106), the American Convention (Articles 41.f, 44 to 51), the Statute (Articles 23 and 24) and its own Rules, which determine the frame for the legality of its proceedings.


27.       The processing of individual petitions is ruled by guarantees that ensure the parties the exercise of the right of defence in the proceeding.  Such guarantees are: a) those concerning the conditions of admissibility of the petitions (Articles 44 to 46 of the Convention); and b) those concerning the principles of adversarial proceedings (Article 48 of the Convention) and equality of arms.  It is equally necessary to note herein the principle of juridical security (Article 39 of the Rules of Procedure of the Commission).


28.       In the processing of individual communications, it is required that a complaint on the probable violation of the American Convention by a State party.  From that complaint, the Commission must issue opinion on the existence of the violation.  The final resolution of litigation is incumbent on the Inter-American Court through Judgement.  Before the Court, the State can submit what it deems pertinent for the defence of its rights and the proper observance of the legality in the processing and solution of the controversy, pursuant to the stipulations of the Convention and other normative frames that integrate the corpus iuris of the Inter-American System for the protection of Human Rights, particularly the Statute and the Rules of Court.  Through these means, the Tribunal exercises the controlling function that is specifically conferred upon it by these instruments.


29.       Article 41 of the American Convention entrusts the Commission with other attributions destined to the promotion and protection of human rights.  Among them are the formulation of recommendations to Status for the adoption of measures in favour of human rights, the preparation of studies and reports necessary for the execution of the functions assigned to the Commission, the execution of in loco visits and the attentions of the consultations of the Organisation.


30.       In what concerns other means for the examination of the Commission’s performance, it is necessary to note that in the dispatch of its attributions, pursuant to the Convention, the Commission must present an Annual Report to the General Assembly of the Organisation.  In that instrument, the Commission reports on its Annual Sessions, visits and reports relating to Status and specific topics, petitions and individual cases submitted before it, precautionary measures, admitted petitions, friendly settlements, compliance with recommendations, submissions made to the Court, requests of provisional measures and intervention on contentious cases, amongst other matters.  In the frame of their relation with the OAS, States have the faculty to present before the competent organs of the Organisation, particularly its General Assembly, all observations that they deem pertinent with respect to the actions of the Commission in relation to human rights, in the double function that it carries out, as was mentioned.

Advisory Proceeding OC-20


632.      On 20 April 2004, the Commission presented to the Court a request for an Advisory Opinion for the Tribunal to determine if it is congruent with the dispositions of the Convention and respective protections of the American Declaration that the Status adopt measures of legislative or other nature that prevent individuals condemned to death from accessing judicial or other effective remedies to challenge the sanction on the basis of the delay of the proceedings or the conditions in which the individual has been detained, or the mandatory nature of death penalty, or on the fact that the individual has a pending petition before the Inter-American System for the Protection of Human Rights.


633.      On 24 June 2005 the Court decided not to entertain the request for an Advisory Opinion, because it has already established its position in relation to the raised questions in its decisions of several contentious cases and provisional measures.  In particular, the Court noted that in its Judgement in the Case of Hilaire, Constantine, Benjamín and others vs. Trinidad and Tobago, it had solved the questions raised.


Advisory Proceeding OC-21


634.     On 10 December 2004, the Republic of Costa Rica submitted a request for an Advisory Opinion to the Court, for the Tribunal to determine the compatibility o fan article in its Law of Staff of the Legislative Assembly, and an article of its Law of Constitutional Jurisdiction with the American Convention.


635.     On 10 May 2005, the Court decided not to entertain the request, as it considered that the answer could result in an indirect opinion, through the means of the Advisory proceeding, of litigious matters not yet solved domestically or submitted to the consideration of the Commission or the Court, which would undermine the purpose and content of the advisory function of the Tribunal.