Regarding the above, it should be considered that the actual provisions of Article 8(1)
constitute a remedy – in the instant case, against the administrative procedure of the
Central Bank that it was deemed did not grant “the same rights enjoyed by other
depositors of these banks”; consequently, the procedure for the adoption of those
decisions could not also be considered, in turn, a remedy subject to the provisions of
Article 8(1), because it was not against the State, but only a procedure to prove before
the Bank a requirement from which the exercise of a right could be inferred.
Nevertheless, if it is considered that Article 8(1) would apply to both the procedure
followed to adopt the administrative decision that could be appealed, and to the
complaint or review proceedings filed against it, the result, in the case of the latter,
would in fact be a second instance to which recourse could be had in relation to the
decision by another judge or tribunal, which Article 8(1) does not envisage, but which
is provided for in Article 8(2)(h) of the Convention, although only in cases of criminal
charges.32
In this regard, I repeat that it was after the Bank had issued the corresponding
decisions that did not grant “the same rights enjoyed by other depositors of these
banks,” that the interested party could resort, as some of them did, to “a competent,
independent, and impartial judge or tribunal, previously established by law,” for the right
“to be heard […] for the determination of” those rights.
It should also be underlined that, by deciding the instant case as it did, the judgment
establishes a precedent that the provisions of Article 8(1) would apply to procedures
concerning claims submitted to administrative authorities to accede, after fulfilling the
legal requirements, to benefits or rights that they establish and, in this way and by
interpretation, it significantly expands what those who drafted the article wished to
establish. In this regard, we only have to envisage the scope of the decision in the
sense that it could be applied, for example, to claims that are submitted to
administrative authorities concerning family allowances, pensions and to welfare rights
in general, or to different types of subsidies, and even to tax reductions or benefits.
In addition, it is relevant to call attention to the fact that, in the instant case, what the
judgment is indicating is that, faced with a decision of an administrative authority,
such as the Bank, it is possible to resort immediately to the inter-American jurisdiction
claiming the right to be heard embodied in Article 8(1); although, without prejudice –
if it is deemed appropriate - to resorting also to a court. In other words, the judgment
opens up the possibility that it is possible to resort to the Court without complying with
the prior obligation of exhausting domestic remedies. Evidently, that interpretation is
also outside the letter and spirit of the said article.
It is, therefore, for all these reasons – that is, because the assumptions did not exist
for Article 8(1) to be considered applicable to the actions of the Bank in exercise of the
power granted under article 31 – that it could not and cannot be considered that the
decisions taken under article 31 violated the provisions of Article 8(1).
32
“Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not
been proven according to law. During the proceedings, every person is entitled, with full equality, to the
following minimum guarantees: …, and h) the right to appeal the judgment to a higher court.”
10