SEPARATE OPINION OF JUDGE A.A. CANÇADO TRINDADE
1.
I have concurred with the adoption of the instant Judgment by the InterAmerican Court of Human Rights; nonetheless, I feel obliged to put on record, in this
Separate Opinion, my line of thought on a cornerstone issue in this Judgment aiming
at strengthening one of its operative paragraphs (n. 3) as well as the corresponding
passages of the considerations (paras. 210 to 281), as grounds for my personal
position on this matter. I consider that the violation declared by the Court of Articles
25(1) and (2)(c) of the American Convention in the instant case, based on the failure
to comply with the orders of amparo for a long time period, is ineluctably and
strongly related to the guarantee of reasonable time provided for in Article 8(1) of
the Convention.
2.
This is the understanding that captures the position that I have consistently
maintained for many years as a member of this Court. In the instant case of
Acevedo-Jaramillo et al v. Peru, the Court decided to refrain from analyzing the
alleged violation of Article 8, in the terms it was presented before the Court, which
were perhaps not accurate or adequate enough. However, the Court might have
given the argument a new form in order to provide an answer entailing a more
supportive position towards the protection of human rights. It does not seem to me
beside the point to underscore that the statement by the Court when declaring
Article 25(1) of the Convention to have been violated, whereby it asserted that the
effectiveness of a judgment depends on its faithful enforcement, is closely related to
the protection granted by the above mentioned guarantee of reasonable time
provided for in Article 8(1) of the American Convention.
3.
It is my belief that judgment enforcement is part of the legal process —the
due process of the law— and, hence, the States must ensure that said enforcement
is carried out within a reasonable time. It would neither be beside the point to recall
that, contrary to what traditional legal scholars specializing in procedural matters
tend to think or assume, the procedure is not an end in itself, but a means to do
justice. There is a big gap between formal and actual justice, the latter being the one
I keep in mind at all times when reasoning out my arguments. Moreover, I contend
that compliance with the judgment is part and parcel of the right to a fair trial (lato
sensu), which is to be understood as the right to be furnished the full span of
jurisdiction, wherein the faithful enforcement of the judgment is included.
4.
The enforcement of judgments is, then, an essential element of the right to a
fair trial itself, thus conceived in a broad sense, in which it expresses the relation
between the right to a fair trial and the right to judicial protection under Articles 8
and 25, respectively, of the American Convention. This is the construction best fitting
the precedents of the Court. No more than a week ago, in its Judgment in the Case
of López Álvarez v. Honduras (of February 1st, 2006), the Inter-American Court
clearly stated that:
"The right to a fair trial entails that the solution of the dispute must be reached
in a reasonable time; a long delay might even amount in itself, to a violation of the right
to a fair trial" (para. 128).
5.
This eloquent obiter dictum perfectly harmonizes with the consideration of the
Court in its now famous Advisory Opinion No. 16, on The Right to Information on
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