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presence of violations to Article 25 (“Judicial Protection”) in 40 cases. In my concept,
one and the other imply a violation of the due process –in ample and adequate sense:
the most convenient one for the judicial protection of the human being --, even though
they may and must be analyzed separately. On the other hand, it is necessary to
remember that other precepts of the Convention protect matters that may be classified
within the scope of the due process: for example, violation of the right to life (Article 4,
in what refers to the extraordinary means available for challenging the death penalty),
of the right to integrity (Article 5, in what refers to the illicit coercion over detained
individuals) and the right to liberty (7, in that concerning the rules of detention and
judicial control over the same).
5.
It is convenient to mention that the experience of other national and
international jurisdictions runs in the same direction, as has been put in relevance by
the experts in this field. In the European Court there is abundant presence of matters
related with the due process, with great emphasis on criminal aspects. Oscar
Schiappa-Pietra observes that Article 6º of the European Convention on Human Rights
(ECHR)—precept that establishes the main norms of the due process -- “is the one that
has deserved the greater number of cases (before the European system for the
protection of human rights), in comparison with all other rights acknowledged by the
ECHR” (“Notes on the due process within the framework of the European regional
system for the protection of human rights,” in Novak, Fabián, and Mantilla, Julissa, Las
garantías del debido proceso. Materiales de enseñanza, Pontificia Universidad Católica
del Perú, Center of International Studies/ Real Embassy of the Netherlands, Lima,
1996, p. 145).
6.
Some national analysts point out the frequency of cases presented before the
European Court regarding matters of the trial, as well as those known by the national
jurisdiction as of Article 6º of the Convention of 1950, regarding the subject that we
are currently dealing with (Cfr., only as an example, Dupré, Catherine, “France”, in
Blackburn & Polakiewicz, Fundamental Rights in Europe. The ECHR and its Member
States, 1950-2000. Oxford University Press, Great Britain, 2001, p. 325, and in what
refers to Italy, with emphasis on the problems of the “reasonable time”, Meriggiola,
Enzo, “Italy”, in idem, pages. 487-488 and 501. Regarding Spain, Guillermo Escobar
Roca observes that Article 6 is the precept of the Convention most frequently invoked
before the Constitutional Court of that country. Cfr. “Spain”, in idem, p. 817. The
violations to the reasonable time and the right to defense are constantly invoked, in
criminal procedural matters, before the European Court, as well as the problems that
arise from the right to an independent and impartial tribunal. Cfr. Delmas-Marty,
Mireille, “Introduction”, in Delmas-Marty (dir.), Procesos penales de Europa (Alemania,
Inglaterra y País de Gales, Bélgica, Francia, Italia), translation Pablo Morenilla Allard,
Ed. Eijus, Zaragoza (Spain), 2000, p. 33).
7.
In what refers to the extremes of the due process –in ample sense, as I have
mentioned -- covered by the Court’s jurisprudence, it is necessary to mention that it
has already elaborated a useful jurisprudential doctrine on subjects such as:
independent and impartial tribunal, competent tribunal (subjects that can both be
attracted as elements or, even better, as prerequisites of the due process), military
jurisdiction (chapter relevant to the previous matters), presumption of innocence, the
right to equal protection, defense, the principle of contradiction, public nature of the
process, arrest, preventive detention (conditions and characteristics), investigation,
admissibility and assessment of the evidence, reasonable time (for the preventive
detention and for the process), recourses, new process (res judicata and ne bis in
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