14
41.
Additionally, Article 29(b) of the American Convention expressly prohibits the
interpretation that limits the exercise of the protected rights. Thus, any reorientation of
the constant case-law of the Court, integrative of Articles 8 and 25 of the American
Convention would only be justified in the measure in which they offer a greater
protection of the rights enshrined, which is not the case. Up to this date, I have never
heard in the debates, which I find worrying, that take place in the heart of the Court in
this regard, any demonstration in the sense that dissociating or “separating” Article 8
from 25 would lead to a more efficient protection of the rights enshrined in the
American Convention.
42.
Said debates were unnecessarily repeated in the present case, one day after
the adoption of the Judgment of this Court in the case of the Pueblo Bello Massacre,
without the circumstances of the present case of López Álvarez justifying a sudden
change of criteria by the Court on this matter, within a 24 hour period. Luckily, the
understanding that the dissociating vision of Articles 8 and 25 of the Convention would
lead to a regretful setback in this Court’s jurisprudence prevailed after a sterile debate,
even more so before the current tendency, to the contrary, of general international
jurisprudence on the subject.
VII. The Overcoming of the Vicissitudes regarding the Right
to an Effective Recourse in the Jurisprudential Construction
of the European Court.
43.
If other international organizations for the supervision of human rights have
incurred in the uncertainties of a fragmenting interpretation, why would the InterAmerican Court have to follow this road, abdicating its avant-garde jurisprudence, that
has won it the respect of the beneficiaries of our system of protection as well as of the
international community, and assume a different position that has even been
abandoned by other organizations that had mistakenly followed it in the past? This
does not make any sense.
44.
I take the liberty to illustrate this point with an example, extracted from the
experience, of trial and error, of the European system of protection of human rights. In
its beginning, the case-law of the European Court of Human Rights stated the
“accessory” nature of Article 13 (right to an effective recourse) of the European
Convention on Human Rights, understood – as of the eighties – as guaranteeing a
subjective substantive individual right. Gradually, in its judgments in the cases of Klass
versus Alemania (1978), Silver et al. versus the United Kingdom (1983), and
Abdulaziz, Cabales and Balkandali versus the United Kingdom (1985), the European
Court started acknowledging the autonomous nature of Article 13. Finally, after years
of hesitation and fluctuations, the European Court, in its judgment of 12.18.1996 in
the case of Aksoy versus Turkey (paragraphs 95-100), determined the occurrence of
an “autonomous” violation of Article 13 of the European Convention.
45.
In a pioneer study on the subject published in 1973, Pierre Mertens criticized
the “poverty” of the European Court’s initial jurisprudence, as well as the vague nature
of the European doctrine of that time on the subject, - different from the most
advanced Latin American doctrine and practices, as of the adoption of the American
Declaration of 1948, first international instrument to enshrine the right to an effective