5
expressed in Article 8 of the Convention should be understood to apply to all judicial
guarantees referred to in the American Convention (reading Article 8 in combination
with Articles 7(6), 25 and 27(2) of the Convention).10
14.
That being the case, judicial guarantees such as those protected under
American Convention articles 7(6) -habeas corpus– and 25(1) –the petition for a writ
of amparo or the petition for a writ of mandamus or any other effective remedy
before the competent domestic judges or courts- are essentials that must be taken
within the framework of the principles of Article 8 of the Convention.11 The Court
concludes Advisory Opinion OC-9 in very unambiguous terms:
"the above judicial guarantees should be exercised within the framework and
the principles of due process of law, expressed in Article 8 of the Convention. "12
15. MORE RECENTLY, IN ITS HISTORIC AND PIONEERING ADVISORY
OPINION OC-16/99 (OCTOBER 1, 19999) ON THE RIGHT TO
INFORMATION ON CONSULAR ASSISTANCE IN THE FRAMEWORK OF THE
GUARANTEES
OF
DUE PROCESS
OF
LAW,
WHICH HAS BEEN A SOURCE OF
INSPIRATION FOR THE INTERNATIONAL CASE-LAW IN STATU NASCENDI ON
THE
MATTER,
THE
INTER-AMERICAN
PREREQUISITES OF THE JUDICIAL
8
OF THE
CONVENTION)
COURT EMPHASIZED THAT THE
GUARANTEES (PROTECTED UNDER ARTICLE
ARE INTENDED TO ENSURE OR TO ASSERT THE
ENTITLEMENT TO A PROTECTED RIGHT OR THE EXERCISE THEREOF.
COURT
THE
ALSO POINTED UP THE ESSENTIALLY EVOLUTIVE NATURE OF THE VERY
CONCEPT OF DUE PROCESS OF LAW, WHICH GROWS AND EXPANDS TO
ACCOMMODATE NEW REQUIREMENTS FOR THE PROTECTION OF THE HUMAN
PERSON.13
16.
In my concurring opinion on the latest and equally historic Advisory Opinion
OC/18 (September 17, 2003) on the Juridical Condition and Rights of Undocumented
Migrants (the first time an international court has addressed this matter), I pointed
out the great significance that I attribute to the fundamental principles of law in any
legal system, as follows:
Every legal system has fundamental principles, which inspire, inform and conform their
norms. It is the principles (derived etymologically from the Latin principium) that,
evoking the first causes, sources or origins of the norms and rules, confer cohesion,
coherence and legitimacy upon the legal norms and the legal system as a whole. It is
10
11
12
Ibid., paragraphs 29-30.
Ibid., paragraph 38 and operative paragraph No. 1.
Ibid., operative paragraph No. 3.
13
Cf. IACtHR, Advisory Opinion OC-16/99 (October 1, 1999) on The Right to Information on Consular
Assistance in the Framework of the Guarantees of Due Process of Law. Series A, No. 16, paragraphs 117-124.
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