SEPARATE OPINION OF JUDGE SERGIO GARCÍA RAMÍREZ
REGARDING THE JUDGMENT DELIVERED BY THE
INTER-AMERICAN COURT OF HUMAN RIGHTS
IN CLAUDE REYES ET AL. V. CHILE
OF SEPTEMBER 19, 2006
1.
Over the past twenty-five years, the case law of the Inter-American Court
has had to explore the meaning and scope of numerous rights and freedoms
contained in the American Convention. This re-interpretation of the international
treaty, in light of its object and purpose – which focuses on the most
comprehensive protection of human rights possible – and imposed by new
circumstances, has allowed it to clarify the meaning of the treaty-based principles
in an evolutive manner without abandoning the course set by the Convention or
changing its fundamental nature. To the contrary, these have been affirmed and
enhanced. The reinterpretation of the texts – characteristic of constitutional courts
in the national system and of treaty-based courts in the international system –
allows the protection of rights to be updated and to respond to innovations
resulting from the evolution of relations between the individual and the State.
2.
Consequently, the concept maintained by the Inter-American Court,
influenced in this matter by European case law, acquires relevance when it affirms
that “human rights treaties are living instruments whose interpretation must take
into consideration changes over time and current conditions. This evolutive
interpretation is consequent with the general rules of interpretation embodied in
Article 29 of the American Convention, and also those established in the Vienna
Convention on the Law of Treaties.”
3.
Obviously, none of this implies that the Court should use its imagination and
change the general contents of the Convention, without going through the formal
normative instances. In brief, it is not a question of “reforming” the text of the
Convention, but of developing the legal decisions taken under the Convention, so
that they retain their “capacity of response” to situations the authors of the
instrument were not faced with, but that concern issues that are essentially the
same as those considered in the Convention and that involve specific problems and
require relevant solutions, evidently based on the values, principles and norms in
force. Inter-American case law has advanced in this direction, governed by the
provisions signed in 1969, in which it has generally been able to find a current and
pertinent meaning in order to deal with and resolve the circumstances of each new
stage. There are numerous examples of this development.
4.
Among the issues examined most frequently by the Inter-American Court is
the so-called due process of law, a concept developed by Anglo-American case law
and regulations. The Pact of San José does not invoke “due process” literally.
However, with other words, it organizes the system of hearing, defense and
decision contained in that concept. It fulfills this mission – essential for the
protection of human rights – in different ways and with different provisions,
including Article 8, which is entitled “Right to a Fair Trial” (Note: “Judicial
Guarantees” in Spanish). The purpose of this article is to ensure that the State
bodies called on to determine an individual’s rights and obligations – in many
aspects – will do so using a procedure that provides the individual with the
necessary means to defend his legitimate interests and obtain duly reasoned and
justified rulings, so that he is protected by the law and safeguarded from
arbitrariness.
5.
If the beneficiary of the protection offered by the Convention and the entity
that applies the protection adhere to the letter of the text, as it was written several