2
5.
Paragraph 1 of Article 8, invoked in the Case of Palamara-Iribarne, to which
Judgment I attach this Opinion, sets forth a rule of general scope in this area, to
wit: every person has the right “to a hearing with due guarantees and within a
reasonable time, by a competent, independent, and impartial tribunal, previously
established by law (…)”. For functional reasons I consider evident, this is a guiding
guarantee or, even better, conditioning of the aggregate of guarantees set forth in
Article 8, with a very broad scope in the most different aspects of the trial. The
provision of the Article above gains meaning and effectiveness under the protection
of the rule which establishes the right to a hearing under qualified conditions.
6.
As we already know, there is not a comprehensive and unanimously
accepted description of due process, with regard to which other concepts are
brought to discussion –synonymic or bordering concepts, a relation that I shall not
analyze now –, such as effective legal protection or fair trial. Thus, it is usual to
mention a series of rights, concepts or institutions on this matter, among which the
demand for a trial before a legally established jurisdictional body which additionally
has the characteristics of impartiality and jurisdiction stated in the above mentioned
paragraph 1 of Article 1 of the American Convention on Human Rights is invariably
present.
7.
It is possible – and even necessary, in my opinion- to establish a certain
division between this guarantee on the court, which I have called “guiding” or
“conditioning”, and the remaining guarantees of that same Article 8, paragraphs 1
and 2, as well as those of other provisions of the American Convention. In order for
these to operate, the complete and strict observance of the above mentioned
guarantee is required; that is why it is considered to be guiding and conditioning.
So, it seems reasonable to award to the existence of the judge or court the
characteristic of the requirement of due process, and not only that of a component
or element of the latter. In fact, it is precedent to the other rights which may be
characterized in this last manner.
8.
If we talk about proper defense, right to remain silent, remedy for the
complete revision of the judgment, etc., it is supposed that all that is relevant
precisely when a set of procedural acts is developed before the judicial authority of
paragraph 1, which in this way constitutes the institutional or organic context, or
the hypothesis or grounds for the presentation of the other rights. Of course, this
does not prevent the demand for the observance of the due process guarantees
when other authorities –not strictly judicial or jurisdictional- fulfill functions out of
which the acknowledgement or disregard of rights or obligations shall be derived. In
this case there is an extension of the concept and scope of due process of law, so
as to address with realism and efficiency the protection purposes it pursuits.
9.
Article 8(1) sets forth the characteristics of the settler (in the material
sense, not only in the formal sense) summoned to decide an adversarial case and
before whom the proceedings subjected to the guarantees system specified in the
same provision must be developed:
a) legally established, that is, his powers shall derive from the law which creates
him or, in any case, from a law preventing them, considering the genuine scope of
the expression “law”, a topic which has also been addressed by the Inter-American
Court jurisprudence;
b) preexistent to the facts on which it is to pass judgment, an ex ante characteristic
which often constitutes a precious guarantee of legal certainty: it is set in the axis
of criminal repression itself, regarding the principle of nullum crimen nulla poena
sine lege praevia: substantive, organic and procedural, and it excludes ad hoc
courts and the trials by commission;