-15-
"The Court must examine all the domestic judicial proceedings in order to obtain an
integrated vision of these acts and establish whether or not it is evident that they
violated the norms on the obligation to investigate, and the right to be heard and to an
35
effective recourse, which arise from Articles 1(1), 8 and 25 of the Convention."
40.
In this judgment in the historic "Street Children" case, the Court added:
"Regarding acts or omissions of domestic judicial bodies, Articles 25 and 8 of the
Convention define the scope of the [...] principle of generation of responsibility for the
acts of all State organs” (para. 220).
In other words, the provisions of Articles 25 and 8 of the Convention, considered
together, are fundamental for determining the scope of State responsibility, including
for the acts or omissions of the Judiciary (or any other State agent or branch).
41.
In Juan Humberto Sánchez v. Honduras (judgment of June 7, 2003), the
Court stated that recourses that “are illusory,” owing to the “general conditions of
the country” in question or even “the specific circumstances” of a particular case,
cannot be considered “effective” (para. 121). In other words, access to justice and
the effective exercise of a right (with strict respect for judicial rights) are inevitably
linked. And the Court added in that case:
"(...) In the case under discussion it has been proven that the death of Juan Humberto
Sánchez was set within the framework of a pattern of extra-legal executions [...], one
characteristic of which is that there has also been a situation of impunity [...] in which
judicial remedies are not effective, the judicial investigations have serious
shortcomings, and the passing of time plays a fundamental role in erasing all traces of
the crime, thus making the right to defense and judicial protection an illusion, as
regards the terms set forth in Articles 8 and 25 of the American Convention (para.
135).
42.
In addition, in Durand and Ugarte v. Peru (judgment of August 16, 2000), the
Court recalled the pleadings of the Inter-American Commission on Human Rights to
the effect that “the exclusive military justice system does not offer the minimum
guarantees of independence and impartiality required according to the provisions of
Article 8(1) of the Convention and, therefore, does not constitute an effective
recourse to protect the rights of the victims and their next of kin and to repair the
damage caused, also violating the provisions of Article 25 of the Convention" (para.
120). Thus, when determining the violation of Articles 8(1) in connection with 25(1)
of the Convention in the Durand and Ugarte case, the Court concluded that:
"As a consequence, Article 8(1) of the American Convention, in connection with Article
25(1) thereof, confers on the next of kin of the victims the right that the latter’s
disappearance and death should be investigated by State authorities; that those
responsible for these illegal acts should be prosecuted and, if applicable, the
corresponding sanctions should be imposed, and that the damages suffered by the next
of kin should be compensated. None of these rights was guaranteed in the instant case
of the next of kin of Mr. Durand Ugarte and Mr. Ugarte Rivera" (para. 130).
Jurisprudência da Corte Interamericana de Direitos Humanos, Rio de Janeiro, CEJIL/Brazil, 2003, pp. 7-237;
Casa Alianza, Los Pequeños Mártires..., San José, Costa Rica, Casa Alianza/A.L., 2004, pp. 13-196; among
several other publications on the case mentioned.
35
.
Para. 224 of the said judgment (emphasis added), and cf. para. 225.
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