Appendix V: Eleventh Advisory Opinion of the Inter-American Court of Human Rights
| Published date | 01 December 1990 |
| Date | 01 December 1990 |
| DOI | 10.1177/016934419000800416 |
| Subject Matter | Part C: Appendices |
NQHR
4/1990
APPENDIX V
ELEVENTH ADVISORY
OPINION
OF
THE
INTER-AMERICAN
COURT OF HUMAN RIGHTS
(I/A Court H.R., Exemptions to
the
exhaustion of domestic remedies.
Articles 46(1), 46(2)(a)
and
46(2)(b) of the American Convention on
Human
Rights).
On 10 August 1990,
the
Courtissued its eleventh advisory opinion,this time
at the request of the Inter-American Commission on
Human
Rights.
The
Commission sometimes receives communicationsin which
the
victim states
that
he or
she
has
been
unable to exhaust domestic legal remedies because
he or she could
not
afford the expenses
oflegal
advice
and/or
those related
to his or
her
appearance
before
the
courts.
The
Commission considers that
requesting exhaustion of local remedies from indigents who cannot pay
these expenses could constitute discrimination on the basis of their social
condition.
The
Commission faces a similar problem with individuals who
argue
that
lawyers do
not
dare
represent
them for fear of placing their lives
and
that
of their relatives in jeopardy.
Under
the authority of Article 64(1)
of
the
Convention,
the
Commission requested the Court to give
an
opinion
on
the
possibility of exempting
the
victims who invoke these two sets of
circumstances from exhausting domestic legal remedies.
On answering
the
Commission's request,
the
Court notes
that
Article
46(2) does
not
mentionthese cases consultedby the Commission as specific
instances in which
the
requirement
to exhaust domestic legal remedies can
be waived,
and
states
that
Article 1(1) (obligation to respect rights), Article
24 (right to
equal
protection)
and
Articles 8(1)
and
8(2)(d)
and
(e) (right
to a fair trial) should be considered in
order
to analyze whether, by way of
interpretation, they could be included in that provision.
Firstly, the Court affirms
that
Article 1(1) forbids the State to discrimi-
nate
on
the ground of a person's "economic position"
and
concludes that
the word "discrimination" in Article 24 should be interpreted in the light of
this prohibition. Consequently,
the
Court is of the opinion
that
aperson
who cannot enjoy
the
protection of the law because of his economic
situationis being discriminated against and
that
this is in violation of Article
1(1) of the Convention. Secondly,
the
Court asserts
that
the
"protection of
the law" is basically composed of the legal remedies provided by it to
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