8
Subsequently to its historical Consultative Opinion No. 18 on the Legal Status
and Rights of Undocumented Migrants of 2003, the Court could and should have already
taken this other qualitative step in its jurisprudence. I dare cherish hope that the Court
shall do so as soon as possible, if it really carries on with its vanguard jurisprudence, instead of trying to refrain it, - and it may extend the progress attained with grounds
and courage as with the above mentioned Consultative Opinion No. 18 in the line of
constant expansion of the jus cogens material content” (paras. 64-65).
22.
To my personal satisfaction, the Inter-American Court, in this Judgment of
the case Ximenes-Lopes, was unanimously true to its best jurisprudence constante
regarding the matter, repeating with the highest clarity its understanding of the
inevitable dissociability between Articles 25 and 8 of the American Convention, as it
unmistakably arises from paragraph 191 of this Judgment, when pointing out that
“the effective remedy of Article 25 must follow the process according to the rules of
due process of law set forth in Article 8 of the Convention.” Also, the Court reminded
that the international liability of the State for the violation of international rules
differs from its liability in domestic law (para. 193).
23.
Concurrently with the position assumed by the Court in this regard, I cannot
help remarking that, as a reply to the questions I posed during the public hearing of
November 30, 2001 and December 1, 2005 before the Court, both the InterAmerican Commission of Human Rights (CIDH) and the victim’s representatives and
next of kin expressed that the best hermeneutics of Articles 8(1) and 25 of the
American Convention is the one which effectively and necessarily relates them. The
CIDH ruled defending "the integrated combination of due process of law and effective
protection of rights of Article 8(1) and Article 25" of the Convention, 23 and the above
mentioned representatives affirmed in the same sense that the “clearer
understanding of those provisions within the Inter-American system would be to
analyze both sections jointly, even because that is precisely what most of the
jurisprudence of that Honorable Court does.”24
IV.
The Right of Access to Justice as the Right to the Prompt
Response by the Judicial System.
24.
The right of access to justice lato sensu presumes the understanding that it
means the right to a prompt response by the judicial system. Its faithful fulfillment
was not verified in the case of Ximenes-Lopes, as it is clearly inferred from the facts
themselves. For instance, on March 27, 2000, the Public Prosecutor’s representative
filed a criminal complaint in Sobral county against four people allegedly involved in
the penalties of the Brazilian Penal Code (Article 136(2)) for mistreatment resulting
in the death of Mr. Damião Ximenes-Lopes. Two months later, the prosecutors of the
Operational Support Center for Socially Discriminated Groups of the Attorney
General’s Office expressed to the acting Prosecutor of the case that the supplemental
complaint constituted a “legal and institutional imposition;” despite the above, it was
only on September 22, 2003, when presenting the closing arguments, that the Public
Prosecutor’s Office filed a supplemental complaint to include other two people.
.
125.
23
24
.
Inter-American Court of Human Rights, Transcript of Public Hearing..., op. cit. supra n. (3), p.
Ibid., p. 126.