7
substantive Judgment in the tragic case of Castillo Páez, I felt gratified upon verifying
that the mentioned jurisprudential advances of the Inter-American Court had freed
Article 25 – in the tradition of the most lucid Latin American legal thoughts14 - of the
American Convention of the vicissitudes experimented by the corresponding Article 13
of the European Convention (cf. infra). The Inter-American Court correctly pointed out
the indelible link between Articles 25 and 8 of the American Convention, by weighing
in, in its Judgment (of 09.15.2005), in the case of the Mapiripán Massacre, related to
Colombia, that, as had been stated for some time,
"according to the American Convention, the States Parties are obliged to provide
effective judicial recourses to the victims of violations to human rights (Article 25),
recourses that must be substantiated pursuant to the rules of the due process of law
(Article 8(1)), all of it within the general obligation, of the same States, to guarantee the
full and free exercise of the rights acknowledged by the Convention to every person under
its jurisdiction (Article 1(1)." (para. 195)
18. Recently, in the public hearing of 12.01.2005 before this Court in the case of
Ximenes Lopes versus Brazil, both the Inter-American Commission of Human Rights
(ICHR) as well as the Representatives of the alleged victim and their next of kin
maintained an integrative interpretation of Articles 8(1) and 25 of the American
Convention, to be considered, in its understanding, necessarily as a whole. The ICHR
stated15 that
"Article 8(1) can not be separated from 25 nor vice versa, since they definitely
respond to a same type of responsibility within the judicial realm (...)."
According to the ICHR, - remembering for this the “firm”, and today convergent,
jurisprudence in this matter of the Inter-American and European Courts, - the
“reasonable time” contemplated in Article 8 of the American Convention is intimately
linked to the effective, simple, and prompt recourse contemplated in its Article 25. The
Representatives of the alleged victim and his next of kin also expressed their respect
for the constant case-law of the Inter-American on that matter up to this date, and its
support to the same, which they are determined to follow stating that “the most clear
reading of this norm within the Inter-American system would be that the two Articles
[Articles 8 and 25 of the Convention] should be analyzed jointly.” This is the point of
view of the beneficiaries themselves of the Inter-American system of protection, as
well as of the ICHR, in the case of Ximenes Lopes before this Court.
19.
In a study I presented in an International Seminar of the International
Committee of the Red Cross (ICRC) on the Due Process of Law, carried out a few years
ago in Hong Kong, China, I allowed myself to remind those present of that stated in
Advisory Opinion n. 9 of the Inter-American Court,16 of 10.06.1987, in the sense that
effective recourses before national competent judges or tribunals (Article 25(1) of the
Convention) such as the habeas corpus and the amparo, and any other recourses
essential to ensure the respect of nonrevocable rights (not subject to annulment under
Article 27(2) of the Convention), are “essential” judicial guarantees, that must be
14
Cf. note (4) supra.
15
As stated in the transcription of the mentioned hearing, deposited in the files of the Court and sent
to the parties in the cas d'espèce.
16
I.-A. Court H.R., Series A, n. 9, 1987, pp. 23-41.