136. Actually, the right to a fair trial is an imperative both in the international and
national realm. There is currently a convergence between international law and
domestic public law, which turns the approaches of the past based on the static vision
of “subsidiarity” of the international legal system into anachronistic ones. A quarter of
a century ago, I allowed myself to state that, from the perspective of the people
protected, the effective domestic recourses (v.g., Article 25 of the American
Convention) are part of the international protection of human rights.102
137. The granting of the locus standi in judicio to individuals before the InterAmerican Court was announced by Article 23 of the third Rules of Procedures of the
Court (adopted on 09.16.1996 and in force as of 01.01.1997), granted only in the
reparations stage. The decisive step and great qualitative leap occurred with the
adoption of the fourth and current Rules of Procedure of the Court (of 11.24.2000, in
force as of 06.01.2001, up to this date). The new Rules of Procedure granted an
active legal standing or a direct participation (locus standi in judicio) to individual
petitioners (the alleged victims, their next of kin, or legal representatives duly
accredited) in all the stages of the proceedings before the Court.103 (Article 23)
138. In a historical perspective, this was the most transcendental modification
introduced by the Rules of Procedure of the Court, a real turning point in the evolution
of the Inter-American human rights protection system as a whole. In effect, the
consolidation of the locus standi in judicio of individuals before the Court is an
appropriate and logical development, since it does not seem reasonable to
acknowledge rights in the international realm without the corresponding procedural
capacity to vindicate them. Based on the right of individual petition the juridical
mechanism of emancipation of the human being vis-à-vis the State itself is created104
for the protection of their rights within the sphere of International Human Rights Law,
- an emancipation that comes in the end to attribute an ethical content to the
regulations both of domestic public law and international law.
2.
The Right to the Realization of Material Justice .
139. The understanding of the progress made by the Inter-American Court in its
jurisprudential construction in recent years – which does not admit steps backwards –
has been in the sense that the right to a fair trial (lato sensu) at national and
international levels corresponds to a right of realization of material justice. As such, it
not only covers formal access to a court or judge, but also to the guarantees of the
.
A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Local
Remedies in International Law, Cambridge, Cambridge University Press, 1983, pp. 1445.
102
.
Regarding the legislative background of the third and fourth Rules of Procedure
of the Court, cf. A.A. Cançado Trindade, "El Nuevo Reglamento de la Corte
Interamericana de Derechos Humanos (2000) y Su Proyección Hacia el Futuro: La
Emancipación del Ser Humano como Sujeto del Derecho Internacional", in XXVIII
Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano OEA (2001) pp. 33-92.
103
.
Cf. A.A. Cançado Trindade, "The Emancipation of the Individual from His Own
State - The Historical Recovery of the Human Person as Subject of the Law of
Nations", in Human Rights, Democracy and the Rule of Law - Liber Amicorum L.
Wildhaber (eds. S. Breitenmoser et alii), Zürich/Baden-Baden, Dike/Nomos, 2007, pp.
151-171.
104