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surpassed by new progress and probably the years to come will bring novelties in the
permanent evolution of the due process within the democratic conception of criminal
justice.”
13. At the time I added: “The rights and guarantees that make up the due process –
never an exhausted reality, but a dynamic system in constant formation-- are
necessary pieces of the same; if they disappear or are dwindled, the due process
disappears. Therefore, they are indispensable parts of a whole; each of them is
essential to its existence and survival. It is not possible to say that there is a due
process when the trial does not take place before a competent court, independent
and unbiased, or the defendant is not aware of the charges being made against him,
or he does not have the possibility to present evidence and pleas, or control by a
higher body is excluded.
14. “The absence or unawareness of those rights destroy the due process and may
not be corrected with the desire to prove that despite the non-existence of
procedural guarantees the judgment issued by the court at the end of an irregular
criminal procedure is fair. To consider that it is enough to achieve a supposedly fair
result, that is, a judgment pursuant to the act performed by the subject, so that the
way in which it was obtained can be acquiesced, is equivalent to going back to the
idea of ‘the end justifies the means’ and the lawfulness of the result purges the
unlawfulness of the procedure. Today the formula has been inverted: ‘the legitimacy
of the means justifies the end reached’; that is, it is only possible to reach a fair
judgment, which verifies justice in a democratic society, when the (procedural)
means used to issue it have been licit.
15. “If to determine the need or relevance of a right in the course of the process –
with the purpose of determining if in its exercise it is indispensable or dispensable—
one were to resort to the examination and demonstration of its effects on each
judgment, case by case, one would incur in a dangerous relativization of the rights
and guarantees, which would take the development of criminal justice back to a
previous time. With this concept it would be possible –and inevitable—to submit all
rights to the same examination: the influence that the lack of a defense counsel, the
ignorance of the charges, an irregular detention, the application of tortures, the nonawareness of the procedural means of control, and so forth have on a judgment
would have to be weighed case by case. The consequence would be the destruction
of the concept of the due process, with all the consequences that would derive from
that.
16. When I issued that Opinion --several years ago-- I examined the consequences
that the serious defects of the procedure could entail over the process as a whole
and the judgment issued in it. In this sense, I mentioned that the violation of the
process “has the consequences that are necessarily produced by an illicit act of these
characteristics: reversal and responsibility. This does not mean impunity, because it
is possible to order the repeat of the trial so that it is developed in a regular manner.
This possibility is widely known in procedural law and does not require greater
consideration.”
17. In the evolution of the jurisprudence of the Inter-American Court not only the
concept of a due process must be assessed, but also its extension to matters
different to and even distant from criminal subjects, taking as a reference, however,
in all that results rationally applicable, the characteristics it has in criminal matters -which are more widely explored and detailed – in order to ensure an ample and
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