CONCURRING OPINION OF JUDGE DIEGO GARCIA-SAYÁN
JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF BARBANI DUARTE ET AL. v. URUGUAY
OF OCTOBER 13, 2011
1. This judgment reiterates the consistent case law of the Inter-American Court concerning
the guarantees that protect the individual in both judicial and non-judicial proceedings in
which their rights or obligations are determined. Indeed, the judgment states that:
“Article 8 of the American Convention establishes the standards of due process of law,
which consists of a series of requirements that must be observed by the procedural
instances, so that every person may defend his rights adequately when faced with any
type of act of the State that may affect them” (para. 116). In this concurrent opinion I
wish to emphasize that, on this issue, the Court is not innovating – and does not have to
do so – but rather reiterating its case law on the scope of the guarantees of due process
in non-judicial or administrative proceedings.
2. In this judgment, the Court specified that “Article 8(1) of the Convention is not
applicable only to judges and courts. The 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” (para. 118).
Similarly, the Court emphasized that “[t]he guarantees established in Article 8(1) of the
Convention are also applicable to the hypothesis in which a public authority adopts
decisions that determine such rights, taking into account that the guarantees inherent in
a jurisdictional body cannot be required of the former, but nevertheless it must comply
with the guarantees designed to ensure that the decision is not arbitrary” (para. 119).
3. Overall, the issue of due process and judicial guarantees in proceedings before public
bodies has been of fundamental importance in the case law of the Inter-American Court.
And this is because, as the circumstances of the cases submitted to the Court have
revealed, this is a matter that affects the rights of the individual very extensively and in
different ways. When this judgment was adopted, in October 2011, the Court had
declared a violation of Article 8 of the Convention in more than 95% of the cases it had
heard and had referred to the content and requirements of this article in 50% of its
advisory opinions. Thus, the issue of due process of law has been and continues to be
present permanently in the cases submitted to the Inter-American Court.
4. The Court’s consistent case law has interpreted broadly, in compliance with its mandate,
the guarantees established in Article 8(2) of the Convention. Thus, it has consistently
understood that the main elements of judicial protection extend to a wide range of
presumptions and matters. Indeed, “even though the said article does not specify
minimum guarantees in matters relating to the determination of rights and obligations of
a civil, labor, fiscal or any other nature, the minimum guarantees established in the
second paragraph of this article also apply in these areas and, consequently, in these
areas the individual has the right to due process in the terms recognized by criminal law,
to the extent applicable to the respective proceeding.”1
1
Case of Ivcher Bronstein v. Peru. Merits, reparations and costs. Judgment of February 6, 2001. Series C
No. 74, para. 103; Case of the Constitutional Court v. Peru. Merits, reparations and costs. Judgment of January 31,
2001. Series C No. 71, para. 70, and Exceptions to the Exhaustion of Domestic Remedies (Arts. 46.1, 46.2.a and
46.2.b, American Convention on Human Rights). Advisory Opinion OC-11/90 of August 10, 1990. Series A No. 11,
para. 28.