CONCURRING OPINION OF JUDGE RHADYS ABREU BLONDET
JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF BARBANI DUARTE ET AL. v. URUGUAY
OF OCTOBER 13, 2011
1.
I have decided to present a concurring opinion to the decision of the InterAmerican Court concerning the interpretation and application of Article 8(1) of the
American Convention in relation to the actions of the Advisory Commission and the
Board of the Central Bank of Uruguay in the case of Barbani Duarte et al. I understand
that the Court’s decision was correct for the following reasons: (1) No provision of the
American Convention can be interpreted restrictively, and (2) It accords with
the consistent case law of the Court.
(1) No provision of the American Convention can be interpreted
restrictively
2.
Article 8(1) of the Pact of San José states the following:
Every person has the right to a hearing, with due guarantees and within a reasonable time, by a
competent, independent, and impartial tribunal, previously established by law, in the substantiation of any
accusation of a criminal nature made against him or for the determination of his rights and
obligations of a civil, labor, fiscal, or any other nature (emphasis added).
3.
According to the Convention, in the determination of the rights and obligations of
every person, whether they are of a civil, labor, fiscal, or any other nature, due
guarantees must be observed that ensure the right to due process, whatever the
proceeding in question. Rather than limiting to the merely juridical sphere everything
that relates to the rules of due process, this provision establishes the State’s obligation
to offer such guarantees in all procedural bodies, whether they are of judicial,
administrative or other nature.
4.
In addition, Article 29(b) of the Convention stipulates that “[n]o provision of this
Convention shall be interpreted as: […] restricting the enjoyment or exercise of any right
or freedom recognized by virtue of the laws of any State Party or by virtue of another
convention to which one of the said States is a party.”
5.
Consequently, the wording of the article examined is clear to the effect that the
States Parties to the Pact of San José are obliged to provide sufficient guarantees to any
person who needs to determine his rights and obligations, regardless of the legal matter
and the type of authority that decides the dispute (whether jurisdictional, administrative,
or military in admissible cases; single person or collective). In addition, Article 29(b) of
the Convention prohibits restrictive interpretation of this instrument.
6.
Lastly, the principle of the progressive realization of human rights, 1 together with
the rule of interpretation in keeping with the object and purpose of the treaty (1969
Vienna Convention) prohibits two aspects: (1) the restrictive interpretation of the articles
of a human rights treaty, and (2) regression with regard to acquired rights owing to a
broader interpretation applied previously. This assertion leads me to the second part of
my opinion.
1
AYALA CORAO, Carlos. “Recepción de la jurisprudencia internacional sobre derechos humanos por la
jurisprudencia constitucional”. Revista Jurídica of the Faculty of Jurisprudence and Social and Political Sciences
of the Universidad Católica de Santiago de Guayaquil. At:
http://www.revistajuridicaonline.com/images/stories/revistas/2005/21/21_Recepcion_de_la_Jur.pdf