6
instrument of Article 25), in which new violations of due process may in turn occur,
now in the venue of the protective proceeding established by the latter precept. Of
course, it is also possible that this same instrument -habeas corpus, amparo and
similar means- may be invoked to protect rights contained in all or almost all the
provisions of the American Convention.
25.
There is, therefore, a borderline that persists between legally protected
interests and rights, in their respective hypotheticals, that may be analyzed
separately. This judgment does that, for example, inasmuch as it studies abridgment
of Article 25 from the standpoint of the violation of Article 7(6), regarding control
over lawfulness of the detention. I do not set aside the hypothetical, more complex
than the one I mention now, that there may be a distinction between the guarantees
judge –or one acting as such-, who acts in the criminal trial itself, to ensure respect
for legality regarding evidence and precautionary measures (which is another way to
comply with the mandate of Article 7(6)) and the judge who oversees the lawfulness
or constitutionality of actions by the authorities, established as a tribunal that is
external to the criminal proceeding, and to whom one resorts based on Article 25 of
the Convention and on the numerous domestic provisions that regulate this matter.
26.
Regarding this same point, we must take into account that, under the terms of
Article 27(2) of the Convention, there is the possibility of suspending the right to fair
trial set forth in Article 8, but this possibility does not exist regarding those
guarantees that are indispensable for the protection of the substantive rights whose
suspension is forbidden, and these are precisely those mentioned in Article 25, as the
Inter-American Court has pointed out in advisory opinions regarding amparo and
habeas corpus and in adjudicatory matters in which this criterion has been applied.
In this regard, we must consider, especially, Advisory Opinions OC-8/87, on “Habeas
Corpus in Emergency Situations,” of January 30, 1987, and OC-9/87, regarding
“Judicial Guarantees in States of Emergency,” of October 6, 1987. There is doubtless
a need to take into account the requirements of due legal process when assessing
compliance with Article 25. It would be unacceptable for the protection offered by
this Article to be diminished or cancelled through procedures that disregard
indispensable procedural rights before the habeas corpus or amparo jurisdiction.
VI.
Due process.
27.
The Anglo-Saxon term due process -translated in some countries as “garantías
esenciales del procedimiento” [essential procedural guarantees]- is one of the most
formidable tools for protection of rights. It is also, in itself, a right and a guarantee
for the defendant. It enables or realizes effective judicial protection. It involves
access to formal justice, such as a hearing, evidence, and pleadings, and to material
justice, as the means to obtain a just judgment. It entails clean and balanced use of
the arms that both the accuser and the defendant are allowed to use, as well as
objectivity, serenity, and the will of the court to give to each one what is due; in
brief, fair trial. All these concepts, each of which has been characterized and
positioned in the domestic legal systems, have a common denominator in their origin,
development, and objective, and they come together under the concept of due
process.
28.
We had gained much ground in the endeavor for due process. The Court has
referred to it –thus, for example, in Advisory Opinion OC-16/99, on “The right to
information on consular assistance,” of October 1, 1999, to which I added a separate
Opinion in which I analyzed this point- as a system of guarantees with expansive
power. The static aspect of due process, sheltered in certain acts, rights, and
guarantees that are non-revocable, has been reinforced by the modern dynamics of
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents