Tendência a opinar?: a admissibilidade de opiniões consultivas pela Corte Interamericana de Direitos Humanos

Abstract

The present work analyzed the delimitation and development of the criteria of substantive admissibility by the Inter-American Court of Human Rights in the exercise of its advisory function. After issuing twenty-two advisory opinions, the hypotheses in which the judicial body must refuse a request for an opinion were systematized in the June 2016 refusal of the OAS Secretary General's request regarding the subject of impeachment. These criteria were used as a basis for claiming the inadmissibility of many of the following requests for opinions which, however, were admitted, except for another request on political judgments, originating from the Inter-American Commission on Human Rights and refused in 2018. Thus, we delimited that the main objective of the research was to assess whether the Inter-American Court of Human Rights, when decided over requests for an advisory opinion after the June 2016 refusal, followed the criteria established in its jurisprudence to deny a request for an advisory opinion. Specifically, the work initially sought to understand the existing substantive criteria for the Inter-American Court not to issue an advisory opinion, explaining the motivation for its creations and the contexts in which they were applied, through a jurisprudential analysis of the opinions and refusals in which this was addressed, in addition to the doctrinal reaction to this practice. Then, using the same methodological procedure, we evaluated the application of the admissibility criteria on the last eight requests for advisory opinions and the techniques used to rule out the application of those hypotheses of refusal. We concluded that in all admissibility exams there was a reference to the main purpose of the advisory function as defined by the Court itself, in addition to the reformulation of the questions in five of the seven admitted opinions. However, we also noticed some coherence with the practice of previous substantive admissibility in almost all admissibility exams, except for the OC-28/21, whose admissibility was questioned by two judges. Hence, from the brief examination carried out at the end of the work of OC-29/22, which was recently published, we concluded that these divergences seem to have influenced the admissibility of the last opinion, representing a positive path to the application of the 2016 criteria in the future practice of the Inter-American Court of Human Rights.