-1436.
In addition to the above-mentioned judgments, the Court has been
particularly emphatic in others about the need to follow an integrating (and never
disaggregating) interpretation of Articles 8 and 25 of the American Convention,
considering them together. For example, in Cantos v. Argentina (Judgment of
November 28, 2002), the Court underscored the importance of the right of access to
justice, embodied, lato sensu, in both Article 25 and Article 8(1) of the Convention,
and added that:
"Any domestic law or measure that imposes costs or in any other way obstructs the
individuals’ access to the courts [...] must be regarded as contrary to Article 8(1) of the
Convention."32
37.
Article 8(1) is thus correctly understood by the Court to be inextricably linked
to the right to an effective recourse under Article 25 of the Convention. In keeping
with this reasoning, in Hilaire, Constantine and Benjamin et al. v. Trinidad and
Tobago (Judgment of June 21, 2002), the Court recalled its obiter dictum in Advisory
Opinion OC-16/99 to the effect that there is no "due process of law" if a defendant is
unable to assert his rights "effectively" (i.e. in the absence of genuine access to
justice) and added that, "for due process of law" it is necessary to observe "all the
requirements" that are designed "to ensure or assert the entitlement to a right or the
exercise thereof" (paras. 146 and 147).
38.
This is the significant consistent case law of the Court to emancipate the
individual, patiently developed over recent years. And this is why I defend it so
staunchly (because I have spent a long time considering it and it has benefited many
cases), in the same way that I am firmly opposed to current attempts within the
court to dismantle it, disassociating Article 8 from Article 25, apparently due to mere
dilettantism or some other reason that I am unable to understand. The Court’s case
law in line with the position I maintain is not exhausted on that point. In Bámaca
Velásquez v. Guatemala (judgment of November 25, 2000), the Court expressly
considered "the guarantees embodied in Article 8 and the judicial protection
established in Article 25 of the Convention" together, in order to examine the alleged
violations of rights in that case (para. 187). And, in Myrna Mack Chang v. Guatemala
(judgment of November 25, 2003), it stated very significantly that:
"[...] The Court must examine the domestic judicial proceedings as a whole to attain a
comprehensive perception of them and to establish whether the said actions contravene
the standards on the right to fair trial and judicial protection and the right to an effective
remedy, derived from Articles 8 and 25 of the Convention." 33
39.
Only an integrating interpretation, such as the one that I have been
maintaining and developing within the Court for more than a decade can provide the
necessarily comprehensive vision of the violation of one or more rights protected by
the Convention, with direct consequences for the appropriate determination of
reparations. This is an additional point that should not be overlooked. In another
well-known case, which has already been examined in books specifically dedicated to
it34 - the "Street Children" (Villagrán Morales et al.) v. Guatemala (judgment of
November 19, 1999) - the Court again maintained that:
32
Paras. 50 and 52 of this judgment.
33
Para. 201 of this judgment (emphasis added).
.
.
34
.
Cf., regarding the Case of the “Street Children", e.g.: CEJIL, Crianças e Adolescentes -
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