-11(judgment of July 5, 2004, para. 193), Tibi v. Ecuador (judgment of September 7,
2004, para. 131), the Serrano Cruz Sisters v. El Salvador (judgment of March 1,
2005, para. 75), Yatama v. Nicaragua (judgment of June 23, 2005, para. 169),
Acosta Calderón v. Ecuador (judgment of June 24, 2005, para. 93), and Palamara
Iribarne v. Chile (judgment of November 22, 2005, para. 184).
VI.
The indivisibility of access to justice (the right to an
effective recourse) and the guarantees of due process of law
(Articles 25 and 8 of the American Convention)
28.
On the day the Inter-American Court adopted the judgment on merits in the
Castillo Páez case (November 3, 1997) - the starting point of this lucid consistent
case law of the Court - I experienced the satisfaction of knowing that significant
progress had been made in the Court’s case law, which advanced to place the right
to an effective recourse in the prominent position that corresponds to it, as an
expression of the right of access to justic, lato sensu, understood as the right to the
availability of justice, thus unavoidably encompassing the guarantees of due process
of law, and authentic execution of judgment. How, then, can we fail to relate Article
25 to Article 8 of the Convention? After all, how could the guarantees of due process
be effective (Article 8) if the individual did not have the right to an effective recourse
(Article 25)? And how could the latter be effective without the guarantee of due
process of law?
29.
The fact is that they complement and complete each other within the legal
framework of the rule of law in a democratic society. This is the sound interpretation
of these two treaty-based provisions. Also, on the day the Court adopted the
judgment on merits in the tragic Castillo Páez case, I was gratified to see that this
advance in the Court’s case law had liberated Article 25 of the American Convention
- in the tradition of the most lucid Latin American juridical though26 - from the
vicissitudes experienced by the corresponding Article 13 of the European Convention
(cf. infra). The Inter-American Court correctly underscored the essential connection
between Articles 25 and 8 of the American Convention when finding, in its judgment
in the Mapiripán Massacre v. Colombia of September 15, 2006, that, as I have been
maintaining for some time:
"According to the American Convention, the States Parties are obliged to provide
effective judicial recourses to the victims of human rights violations (Article 25),
recourses that must be substantiated according to the rules of due process of law
(Article 8(1)), all within the general obligation of the States to ensure to all persons
subject to their jurisdiction the free and full exercise of the rights embodied in the
Convention (Article 1(1))" (para. 195).
30.
Recently, on December 1, 2005, during the public hearing before this Court in
Ximenes Lopes v. Brazil, both the Inter-American Commission on Human Rights and
the representatives of the alleged victim and his next of kin proposed an integrated
interpretation of Articles 8(1) and 25 of the American Convention, which, they
considered, should necessarily be considered together. The Commission stated
that:27
26
.
Cf. note (4) supra.
27
.
As may be seen from the transcript of the said hearing, deposited in the files of the Court and sent to
the parties in the instant case.
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