191. It should also be indicated that the Court, when referring to the judicial guarantees
protected in Article 8 of the Convention, also known as procedural guarantees, has
established that, to ensure that these guarantees really exist in the proceedings, pursuant to
the provisions of Article 8 of the Convention, all the requirements must be observed that
“serve to protect, ensure or assert the ownership or the exercise of a right”; 320 in other
words, the “conditions that must be met to ensure the adequate defense of those who rights
or obligations are being considered by the courts.” 321 This article of the Convention
establishes a system of guarantees that condition the exercise of the State’s ius puniendi and
that seek to ensure that the individual who has been accused or convicted is not subjected to
arbitrary decisions, because “due guarantees” must be observed that ensure, according to the
proceeding in question, the right to due process of law. 322 Furthermore, this Court has
indicated that “any persons subject to a proceeding of any nature before an organ of the
State shall be ensured the guarantee that the said organ […] acts in keeping with the
procedure established by law to hear and decide the case submitted to it.” 323
192. The Court observes that, after the hearing on November 28, 1995, a second hearing
was held on December 5, 1995 (supra para. 85). The Court notes that the lawyer
representing the presumed victims was notified of this hearing and attended it. 324 In this
regard, the Court emphasizes that the case file shows that both Pablo and Carlos Mémoli had
given a general power of attorney to two lawyers, including the lawyer who represented them
at the hearing on December 5, 1995, who was also the one who received notifications from
the domestic court. 325 In addition, regarding the alleged inadmissibility of this second hearing,
as well as the lack of active participation of the presumed victims’ lawyer during this hearing,
the Court underscores that this argument was considered inadmissible by the Second
Chamber for Criminal and Correctional Matters of the Judicial Department of Mercedes (supra
para. 86). Furthermore, the Supreme Court of the province of Buenos Aires considered that
this decision did not show that the Chamber had been arbitrary. 326 Following this decision, the
presumed victims filed a remedy of complaint before the Supreme Court of Justice of the
Nation, which was rejected (supra paras. 89 and 90). Bearing in mind that the domestic
courts are best able to interpret the norms of their domestic law, the Court finds that it has
not been provided with sufficient elements to differ from the interpretation made by the
320
Habeas Corpus in Emergency Situations (Arts. 27.2, 25.1 and 7.6 The American Convention on Human
Rights). Advisory opinion OC-8/87 of January 30, 1987. Series A No. 8, para. 25, and Case of Mohamed v.
Argentina, supra, para. 80.
321
Judicial Guarantees in States of Emergency (Arts. 27.2, 25 and 8 The American Convention on Human
Rights). Advisory opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 28, and Case of Mohamed v.
Argentina, supra, para. 80.
322
Cf. Exceptions to the Exhaustion of Domestic Remedies (Arts. 46.1, 46.2.a and 46.2.b, The American
Convention on Human Rights). Advisory opinion OC-11/90 of August 10, 1990. Series A No. 11, para. 28, and Case
of Mohamed v. Argentina, supra, para. 80.
323
80.
Case of the Constitutional Court v. Peru, supra, para. 77, and Case of Mohamed v. Argentina, supra, para.
324
Cf. Certified notification of hearing of December 5, 1995 (file of annexes to the Merits Report, annex 30,
folio 334), and record of the hearing of December 5, 1995 (file of proceedings before the Commission, tome III,
folios 945 to 951).
325
Cf. General power of attorney granted by Carlos and Pablo Mémoli presented before the court on
September 14, 1992 (file of annexes to the State’s final written arguments, folios 4540 to 4543), and notification
of the first instance judgment (file of annexes to the State’s final written arguments, folios 5154 to 5156).
326
The Supreme Court of Justice of Buenos Aires was deciding a special federal appeal, where the presumed
victims, proposed, among other arguments, the annulment of the said hearing. The Supreme Court considered that
“the grievances expressed on the issue, only reveal the appellant’s personal disagreement with the Court’s
interpretation,” so that they did not prove arbitrariness (supra para. 90).
72
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