25
bodies that could affect human rights should be duly grounded; otherwise, they would be arbitrary
99
decisions. In this regard, the reasoning for a ruling and for certain administrative acts should
provide information regarding the facts, reasons and norms on which the authority based its
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decision, in order to rule out any suggestion of arbitrariness.
It must also show that that the
arguments of the parties have been duly weighed and that the body of evidence has been
analyzed. Based on all the foregoing, the duty to state grounds is one of the “due guarantees”
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included in Article 8(1) to safeguard the right to a fair trial.
117.
For its part and regarding the specific guarantees recognized in article 8(2) of the
American Convention, the Court has held that the administration may not dictate punitive administrative
actions without granting the individuals sanctioned the above minimum guarantees, which are applied
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mutatis mutandis to punitive proceedings.
118.
In applying a number of these guarantees to a specific case concerning immigration,
the Commission referred to the need to ensure that persons can “prepare their defense, formulate their
claims and submit evidence,” which guarantees are impossible to exercise when the government’s
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decision is carried out in an “unreasonably short time.”
119.
For its part, in referring to the scope of the right of defense in the context of an
immigration proceeding, the Court has held that it
binds the State to treat the person, at all times, as a true party to the proceeding, in the broadest
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sense of this concept and not simply as an object thereof.
Article 8(2)(d) and (e) establish the
right of the accused to defend himself or herself personally or to be assisted by legal counsel of his
or her own choosing, and, if the accused does not so chose, the accused has the inalienable right
to be assisted by a counsel provided by the State, paid or not as the domestic law provides. In this
respect and for cases concerning non-criminal procedures, the Tribunal has previously established
that “the circumstances of a particular case or proceeding—its significance, its legal character, and
its context in a particular legal system—are among the factors that bear on the determination of
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whether legal representation is or is not necessary for due process.”
…continuation
the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are
based.” Cf. Suominen v. Finland, no. 37801/97, para. 34, 1 July 2003.
99
I/A Court H.R. Case of López Mendoza v. Venezuela. Merits, Reparations and Costs. Judgment of September 1, 2011,
Series C No. 233. par. 141. Cf. I/A Court H.R., Case of Yatama v. Nicaragua. Judgment of June 23, 2005. Series C, No. 127. pars.
152 and 153. Likewise, the European Court has pointed out that the judges must indicate with sufficient clarity the reasons for which
they adopt their decisions. Cf. ECHR, Hadjianstassiou v. Greece, Judgment of 16 December, 1992, Series A No. 252, para. 23.
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I/A Court H.R. Case of López Mendoza v. Venezuela. Merits, Reparations and Costs. Judgment of September 1, 2011,
Series C No. 233. par. 141. Cf. Case of Claude Reyes et al v. Chile. Merits, Reparations and Costs. Judgment of September 19,
2006. Series C, No. 151, par. 122.
101
I/A Court H.R. Case of López Mendoza v. Venezuela. Merits, Reparations and Costs. Judgment of September 1, 2011,
Series C No. 233. par. 141
102
I/A Court H.R., Baena Ricardo et al. Case v. Panama. Judgment of February 2, 2001. Series C, No. 72. par. 128. See
also Second Progress Report of the Rapporteruship on Migrants Workers and their Families in the Hemisphere, OEA/Ser./L/V/II.111
doc. 20 rev., 16 April 2001, pars. 98 a 100.
103
IACHR, Report No. 49/99. Case 11.610. Loren Laroye Riebe Star, Jorge Barón Guttlein, and Rodolfo Izal Elorz.
Mexico. April 13, 1999. par. 60; IACHR. Report No. 84/09. Case 12.525. Nelson Iván Serrano Sáenz. Publication. Ecuador. August
6, 2009. pars. 61 and 62.
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I/A Court H.R., Case of Vélez Loor v. Panama. Preliminary Objections, Merits, Reparations and Costs Judgment of
November 23, 2010. Series C, No. 218. par. 145. Cf. I/A Court H.R., Case of Barreto Leiva v. Venezuela. Merits, Reparations and
Costs. Judgment of November 17, 2009. Series C, No. 206. par. 29.
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I/A Court H.R., Case of Vélez Loor v. Panama. Preliminary Objections, Merits, Reparations and Costs Judgment of
November 23, 2010. Series C, No. 218. par. 145. Cf. Exceptions to the Exhaustion of Domestic Remedies (Arts. 46(1), 46(2)(a) and
46(2)(b), American Convention on Human Rights). Advisory Opinion OC-11/90 of August 10, 1990. Series A, No. 11, par. 28.