One of them, which this opinion shares, is the one stated in a dissenting opinion issued
in another case,10 to the effect that this “provision seeks to protect the right of the
individual to have disputes arising between two parties, whether private individuals or
State bodies and whether or not they refer to human rights issues, decided with the
most complete judicial guarantees. This provision is the guarantee, par excellence, of
all human rights and a requirement sine qua non for the existence of a State in which
the rule of law prevails. We consider that its importance should not be trivialized by
applying it to situations that, in our opinion, cannot be the focus of this regulation.”
Always according to the said dissenting opinion, “[a] basic presumption for the
application of this right is that the State has failed to respect a right or that the State
has not provided a remedy should an individual fail to respect a right,” so that “[w]hen
a right has been denied, the Convention establishes (under Article 8) the right that a
body with the characteristics indicated in this article shall decide the dispute; in other
words, the right to proceedings being initiated, where the parties who disagree may,
inter alia, submit their respective arguments, present evidence, and contest each
other.”
In this regard, the provisions of Article 8(1) constitute in themselves a remedy against
acts of the State that have affected rights, so that, in consequence, the corresponding
sanctionary powers may be exercised. The above-mentioned dissenting opinion recalls
that this “has been clearly established by the Court in the precedents cited in the
judgment” in reference.
A second possible interpretation, which does not exclude the preceding one, is
considered in the same dissenting opinion, which recalls that the Court has repeatedly
indicated, with regard to Article 8(1) that “its application is not strictly limited to
judicial remedies,” that “although the jurisdictional function belongs, in particular, to
the Judiciary, other public body or authorities may exercise functions of the same
type,” and that, therefore, “any State body that exercises functions of a substantially
jurisdictional nature has the obligation to adopt decisions that are in consonance with
the guarantees of due process of law in the terms of Article 8 of the American
Convention.”
The judgment reiterates these affirmations and thus indicates that “Article 8 of the
American Convention establishes the standards for due process of law, which consist of
a series of requirements that must be observed by the procedural instances, so that
every person may defend his rights adequately in the face of any type of act of the
State that may affect them”; that it “is not applicable only to judges and courts”; and
that “[t]he guarantees established by this norm must be observed in the different
procedures in which State bodies adopt decisions determining a person’s rights,
because the State also entrusts the function of adopting decisions that determine
rights to administrative, collegiate or single-person authorities.”11
A third alternative interpretation, that complements the preceding one, is the one
assumed in this opinion, consisting in nuancing or clarifying the aspects affirmed by
the Court and in the above-mentioned dissenting opinion.
10
Dissenting opinion of Judges Alirio Abreu Burelli and Cecilia Medina Quiroga, Case of Claude Reyes
et al. v. Chile. Judgment on merits, reparations and costs of September 19, 2006.
11
Paras. 116 and 118.
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