116. With regard to the second preliminary objection posed by the State, the representatives:
a) asked the Court to dismiss the objection inasmuch as the facts that support the violation of Article 26 of the Convention were debated in the proceedings before the Commission. In fact, the Commission included these violations in Report No. 126/01 on Admissibility and Merits and in the application it filed with the Court, but simply classified them in a different juridical category;
b) based their position on the fact that with the entry into force of the Court’s new Rules of Procedure, they now have autonomous standing to submit their interpretation of the facts in the case and the rights violated; and
c) argued that the differing juridical classification of the violations discussed and proven during the proceedings before the Commission does not violate the principle of equality of arms or the State’s right of defense.
Considerations of the Court
117. Before turning its attention to the State’s second preliminary objection, the Court believes that some clarification is needed with regard to the possibility suggested by the Commission that the State may file preliminary objections to the arguments made by the representatives in the instant case in their brief of pleadings and motions.
118. To that end, some mention must be made of the various amendments to the article governing the participation of the alleged victims and their duly accredited legal representatives.
119. Article 35(4) of the Rules of Procedure in effect at the time the application in the instant case was filed, provided that the representatives had the authority to present autonomously to the Court their requests, arguments and evidence.
120. The previous version of Article 36 of the Court’s Rules of Procedure -now Article 37- provides that:
1. Preliminary objections may only be filed in the brief answering the application.
2. The document setting out the preliminary objections shall set out the facts on which the objection is based, the legal arguments, and the conclusions and supporting documents, as well as any evidence which the party filing the objection may wish to produce.
121. Thus, the text of the article in question makes no mention of the possibility of filing preliminary objections to the brief of pleadings and motions, either before the Rules of Procedure were amended or thereafter. However, the principle of legal certainty and justice demand that the parties be able to avail themselves of their right of defense. Consequently, based on the adversarial action principle and absent any impediment, the State may, in its answer to the application, enter objections, present observations and, where appropriate, file preliminary objections not just to the application but to the brief of pleadings and motions as well.
122. Furthermore, the Court’s usage constant has been that the respondent State presents its comments on the representatives’ brief of pleadings and motions in its brief answering the application, a practice legislated in Article 38 of the Rules of Procedure as amended on November 25, 2003, which took effect on January 1, 2004. It reads as follows:
1. The respondent shall answer the application in writing within a period of 4 months of the notification, which may not be extended. The requirements indicated in Article 33 of these Rules shall apply. The Secretary shall communicate the said answer to the persons referred to in Article 35(1) above. Within this same period, the respondent shall present its comments on the written brief containing pleadings, motions and evidence. These observations may be included within the answer to the application or within a separate brief.
123. The Court is mindful that the new provisions of amended Article 38 were not in effect at the time the application was filed; however, they were the usage constant of the Court. Therefore, the Court considers that the amended Article 38 can be useful in shedding light on the question posed, since it makes plain the fact that the respondent State has the procedural opportunity, either in its brief answering the application or in another separate brief, to exercise its right to defend itself against the brief of pleadings and motions filed by the representatives, and that right must of necessity include the possibility of filing whatever preliminary objections it deems necessary.
124. This Court will now examine the question of whether other facts or rights not included in the application can be alleged or claimed, respectively. With regard to the facts under examination in this proceeding, this Court considers, as it has on other occasions, that new facts other than those set forth in the application are inadmissible whereas facts that explain, clarify or rebut those alleged in the application or that answer the plaintiff’s claims are admissible.1 Facts that qualify as supervening facts can also be brought to the Court’s attention at any stage in the process, before the judgment is delivered.2
125. Regarding to the inclusion of rights other than those already encompassed by the Commission’s application, this Court has held that the claimants can invoke said rights.3 It is they who are entitled to all the rights protected under the American Convention, and not to admit the inclusion of other rights would be to unduly restrict their status as subjects of the International Law of Human Rights. It is understood that any other rights invoked must be regarding to facts already contained in the application.4
126. The Court is empowered to examine possible violations of Articles of the Convention that were not included in the brief of application, the brief answering the application, and the representatives’ brief of pleadings, motions and evidence. The basis of this authority of the Court is iura novit curia, a long-established principle of international jurisprudence whereby “the judge has the power and even the obligation to apply the pertinent legal provisions in a case, even when the parties do not invoke them expressly.”5 It is understood that the parties will always be given an opportunity to present whatever arguments and evidence they deem relevant to support their position vis-à-vis all the legal provisions under examination.
127. The Court therefore dismisses the State’s preliminary objection asserting failure to claim the violation of Article 26 at the proper procedural opportunity.
THIRD PRELIMINARY OBJECTION
Pleadings of the State
128. In its brief of preliminary objections, the State asked the Court to accept the preliminary objection claiming litis pendencia on the grounds that two cases are pending, one in the domestic courts and another in an international court, involving the same subjects, object and cause of action.
129. In its final oral submissions the State withdrew this preliminary objection, and confirmed its withdrawal of this preliminary objection in its final written submissions.
Pleadings of the Commission
130. The Commission asked the Court to dismiss this preliminary objection brought by the State and explained the grounds for its request. Upon learning that the State had withdrawn this preliminary objection, the Commission asked the Court to consent to the withdrawal.
Pleadings of the representatives
131. For their part, the representatives asked the Court to dismiss the State’s preliminary objection alleging litis pendencia, and explained the grounds for their request. Once the State withdrew that preliminary objection, the representatives made no further reference to it.
Considerations of the Court
132. Inasmuch as the State withdrew its preliminary objection of litis pendencia, this Court considers it withdrawn and will now move on to the merits of the case.
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