-12-
"Article 8(1) cannot be disconnected from Article 25 or vice versa, given that they
respond definitively to the same concept of responsibility in the judicial sphere (...)."
According to the Commission - recalling the "firm" and, today, converging case law
on this point of the Inter-American and European Courts - the "reasonable time"
mentioned in Article 8 of the American Convention is closely linked to a the effective,
simple and prompt recourse mentioned in its Article 25. The representatives of the
alleged victim and his next of kin also acknowledged the consistent case law of the
Inter-American Court on this point to date and their support for it, which they are
determined to continue expressing because "the most obvious interpretation of this
provision within the inter-American system is that the two articles [Articles 8 and 25
of the Convention] should be examined together." This is the opinion of the
beneficiaries of the inter-American protection system, as both they and the
Commission clearly stated during the proceedings before this Court in the Ximenes
Lopes case.
31.
In a study on due process of law that I presented during an international
seminar of the International Committee of the Red Cross (ICRC), in Hong Kong,
China, a few years ago, I recalled the words of Advisory Opinion OC-9/87 of the
Inter-American Court28 of October 6, 1987, with regard to effective recourses before
competent national courts or tribunals (Article 25(1) of the Convention) such as
habeas corpus and amparo, and any other recourses that are essential to ensure
respect for non-derogable rights (those that may not be derogated under Article
27(2) of the Convention), which are "essential" judicial rights that must be exercised
within the framework and in light of the principles of due process of law (under
Article 8 of the American Convention).29 Thus, in Advisory Opinion OC-9/87, the
Court considered the provisions of Articles 25 and 8 of the American Convention as
an indivisible whole.
32.
In this same seminar in China, I referred to the case law developed by the
Court (at the end of 1997 and the beginning of 1998), particularly as of Loayza
Tamayo v. Peru, Blake v. Guatemala and Suárez Rosero v. Ecuador, on relevant
aspects of due process of law and the right to an effective recourse (Articles 25 and
8 of the American Convention), which, in the "second generation" of cases submitted
to the consideration of the Court (after the initial cases on the fundamental right to
life), occupied a central position when considering the applications lodged with the
Inter-American Court.30
33.
I consider that this evolution in case law is the legal heritage of the interAmerican protection system and of the peoples of our region, and I am firmly
opposed to any attempt to dismantle it. The Court has been faithful to its position in
the vanguard to date. In its notable Advisory Opinion OC-16/99 on The Right to
Information on Consular Assistance in the Framework of the Guarantees of Due
Process of Law (of October 1, 1999), which has inspired international case law in
28
.
ICourtHR., Series A, No. 9, 1987, pp. 23-41.
Paragraph 41.
30
.
Cf. A.A. Cançado Trindade, "The Right to a Fair Trial under the American Convention on Human
Rights", in The Right to Fair Trial in International and Comparative Perspective (ed. A. Byrnes), Hong
Kong/China, University of Hong Kong, 1997, pp. 4-11.
29
.
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