-17tribunais nacionais competentes no âmbito da proteção judicial (artigos 25 e 8 da
Convenção Americana) é muito mais relevante do que até recentemente se supôs, em
um continente, como o nosso, marcado por casuísmos que muito freqüentemente
privam os indivíduos da proteção do direito. Requer considerável desenvolvimento
jurisprudencial nos próximos anos."37
[It is important that this advance in the case law of the Inter-American Court is
preserved and developed even further in the future [...] In the inter-American protection
system, the case law on this issue is still in its infancy, and must continue to be carefully
developed. The right to an effective recourse before competent national courts in the
sphere of judicial protection (Articles 25 and 8 of the American Convention) is much
more relevant that was supposed until recently, in a continent such as ours, known for
casuistry that often deprives individuals of the protection of the law. It will call for
significant case law development over the coming years.]
47.
Despite this, I thought that I would not have to examine in detail this issue
(particularly the close relationship between Articles 25 and 8 of the American
Convention), which I considered had been established in the most lucid writings of
international law – and to which I have even dedicated a 177-page chapter in my
Tratado38 (concerning the interpretation and application of the human rights treaties.
Today, at the onset of 2006, I see this is not the case, not even within this Court.
Once again the rock must be pushed up the mountain, even in the knowledge that it
may fall down anew.
48.
Conceptually, judicial protection (Article 25) and judicial guarantees (Article
8) form an organic whole, and constitute the rule of law in a democratic society.
Effective recourses before competent national courts and tribunals (such as, habeas
corpus, amparo in most countries of Latin America, and the mandado de segurança
in Brazil, all in accordance with Article 25 of the American Convention) should be
exercised within the framework, and according to the principles, of due process of
law (embodied in Article 8 of the Convention).39
49.
In a specific case, there may be a violation of only one of the elements of this
form of judicial protection and juridical guarantees – but this does not detract from
the validity of the integrating hermeneutics that I maintain, in the sense that, in
principle, it is necessary to consider together the provisions of Articles 8 and 25 of
the American Convention – which constitute, I reiterate, the rule of law in a
democratic society – in relation to the general obligations stipulated in Articles 1(1)
and 2 of the Convention. I consider that any affirmation to the contrary would
require a justification that, in my opinion, simply does not exist and could not be
even remotely convincing.
50.
Without deviating from the general rules of interpretation of treaties (Article
31(1) of the 1969 and 1986 Vienna Conventions on the Law of Treaties), the
international supervisory mechanisms for human rights have developed a teleological
interpretation, emphasizing the realization of the object and purpose of human rights
treaties as the most appropriate factor to ensure an effective protection of these
37
.
A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, tome II, Porto
Alegre/Brazil, S.A. Fabris Ed., 1999, p. 67, para. 70.
38
.
39
Cf. ibid., chap. XI, pp. 23-200.
.
Cf., in this regard, the Inter-American Court's Advisory Opinion OC-09/87 on Judicial Guarantees in
States of Emergency (1987).
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