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PARTIALLY DISSENTING OPINION OF JUDGE MEDINA QUIROGA
Even though I consider proven the facts that the Court has considered violate the
American Convention in chapter VIII of this judgment – which examines the
violation of Articles 8(1), 25 and 1(1) of the American Convention – I submit this
partially dissenting opinion rejecting the violation of Article 25 and explaining my
reasoning (which differs from that of the Court), to conclude that Article 8 of the
Convention has been violated.
1.
Article 25 embodies the right of the individual to have his human rights
protected in the domestic sphere, simply, promptly and effectively. In our
hemisphere, this is known as the right to the remedy of amparo [protection].1 This
is underscored by the fact that the first version of this provision embodied this right
only for the rights established in the Constitution and laws of the respective
country.2 Its subsequent amendment (incorporating the formulation of Article 2,
paragraph 3, of the International Covenant on Civil and Political Rights), added the
notion that the remedy of amparo should also protect the human rights embodied in
the American Convention.3
In the American Convention, Article 25 is entitled "Judicial Protection." This
could lead us to infer that it enshrines "the right of access to justice." However, we
would have to say that, contrary to the International Covenant on Civil and Political
Rights (article 2(3)), the title signifies that the remedies referred to must be of a
judicial nature. The possible access to justice granted by Article 25 would only
cover prompt, simple and effective remedies; namely, only the remedy of amparo.
2.
Article 8, on the "Right to a Fair Trial" (Translator’s note: the literal
translation from Spanish is "Judicial Guarantees"), does not establish the right to a
remedy, but to due process of law; namely, the series of formalities that must be
observed in the procedural instances to protect the individual’s right to have, on the
one hand, any disputes that arise between two parties - whether individuals or State
bodies, and whether they refer to matters in the sphere of human rights or not –
and, on the other hand, the guilt or innocence of a person, decided with the highest
level possible of justice.
Article 8 establishes a broad right of access to justice for all those effects and
regulates the way in which justice should be dispensed.
3.
Consequently, the two rights are different in nature and their relationship is
one of substance to form, as this Court has said, since Article 26 embodies the right
to a judicial remedy, while Article 8 establishes the way in which this is processed. 4
1
ICourtHR, Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American
Convention on Human Rights). Advisory Opinion OC-8/87 of January 30, 1987. Series A No. 8, para. 32.
2
Inter-American Specialized Conference on Human Rights, Actas y documentos, Doc. 5, p.22.
3
Ibidem, p. 41.
4
ICourtHR, Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 American
Convention on Human Rights). Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 24;
and ICourtHR, Case of Hilaire, Constantine and Benjamin et al.. Judgment of June 21, 2002. Series C No.
94, para. 148.