5
16.
This Court has, moreover, in recent cases, sustained that, although Article 8 of
the American Convention is titled "Judicial Guarantees", it is certain that it assumes
that any public authority, - whether administrative, legislative or judicial, - ought to
respect the guarantees established in the Convention, by means of its resolutions that
determine rights and obligations of the persons12. In relation to the subject-matter of
the case sub judice, the Court has also pondered that the discretionality of public
power, in any matter, "has unsurmountable limits, one of them being respect for
human rights" and the "guarantee of the due process"13.
17.
The relationship of Articles 8(1) and 25(1) with Article 1(1) of the Convention in
the present case is ineluctable. It may be recalled that, in the recent case of the "Street
Children" (Judgment on the Merits, of 19.11.1999), concerning Guatemala, this Court
has established that
"Article 25 is closely linked to the general obligation of Article 1(1) of the American
Convention, in that it assigns duties of protection to the States Parties through their
domestic legislation, from which it is clear that the State has the obligation to design and
embody in legislation an effective recourse, and also to ensure the due application of the
said recourse by its judicial authorities"14.
18.
In fact, the close link between the obstruction of the duty of investigation and
the persistence of the impunity cannot be denied. In the same Judgment in the case of
the "Street Children", the Court pointed out that, for the determination of the
international responsibility of the States for violations of human rights, it should
undertake an examination of "all the domestic judicial proceedings in order to obtain an
integrated vision of these acts and establish whether or not it is evident that they
violated the standards on the obligation to investigate, and the right to be heard and to
an effective remedy, which arise from Articles 1(1), 8 and 25 of the Convention"15.
19.
In the present case Las Palmeras, the domestic judicial activity as a whole
encompasses both the administrative contentieux as well as the military and ordinary
penal process. Such activity ought to produce concrete results, bearing in mind the
general duty of the States Parties to the American Convention of guaranteeing the free
and full exercise of the protected rights. Only thus will the non-repetition of the
wrongful facts be secured. It is possible that, with the developments of contemporary
International Law, and as human conscience reaches a higher degree of evolution, the
rigid borderlines of civil and penal responsibility established by the legal science of the
past began gradually to vanish.
12.
IACtHR, case Baena Ricardo and Others versus Panama (Merits, Judgment of 02.02.2001), Series C, n. 72, par.
124; IACtHR, case Ivcher Bronstein versus Peru (Merits, Judgment of 06.02.2001), Series C, n. 74, par. 102; case of the
Constitutional Tribunal concerning Peru (Merits, Judgment of 31.01.2001), Series C, n. 71, pars. 69-71.
13.
IACtHR, case Baena Ricardo and Others versus Panama (Merits, Judgment of 02.02.2001), Series C, n. 72, par.
126.
14.
IACtHR, Series C, n. 63, p. 199, par. 237.
15.
IACtHR, Series C, n. 63, p. 194, pars. 223-224 (emphasis added).