1
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 AcevedoJaramillo 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