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establishes limitations to rights must have: adopted within the framework of
institutions and processes of a democratic society and seeking common good. The
Court has reflected on the characteristics a law must have within the framework of
the protection to human rights (OC-6/86, paras. 32 and following). And the Tribunal
itself has mentioned that the concept of common good, within the context of the
Convention, refers to “the conditions of social life that allow the members of society
to reach their greatest level of personal development and the greatest validity of
democratic values” (OC-5/85, para. 66). Likewise, the Inter-American jurisprudence
examined the connection between radical concepts of political-legal order based on
the philosophical convictions that form the basis of the American Convention: “The
concept of rights and liberties and, therefore, that of there guarantees, is also
inseparable from the system of values and principles that inspire it. In a democratic
society the rights and liberties inherent to the person, their guarantees and the
Constitutional State form a triad, and each of its components is defined, completed,
and makes sense in function of the others” (OC-8/87, para. 26).
5. I return now to the procedural due process. This matter has occupied the InterAmerican Court since it started it advisory functions.
It has dealt with it,
extensively, when deciding cases and provisional measures. It is a highly traveled
road, maybe the most from among the many that this Tribunal has considered in its
judicial exercise during a quarter of a century. From here on with the designation
due process I will refer now to the issues analyzed in Article 8 of the Convention as
well as those covered in Articles 5 and 7 regarding the treatment of people held in
custody, the duration of the detention, and the conditions in which it occurs.
Eventually, the issues of the due process are projected on other stipulations of the
Convention that refer to different rights, or cover matters referred to in the
mentioned articles: this has occurred, in some points, in the case of Article 4.
6. It seems natural that there is an abundance of matters regarding the due process
within the scene of infringements of human rights. When serving criminal justice –or
criminal injustice—there is an ample quota of violence comparable only with that
committed by the criminals: there is a parallel course between the history of crime
and that of the reactions devised to fight it, generally under the name of criminal
justice. It is in that space that the most dramatic encounter –as I have mentioned
on several occasions— between the State invested with all its power and the
individual divested of merits and defenses, except for those that may be provided to
it by the kindness of the powerful, first, and the development of Law, later, has
always wanted to be legitimized and many times has not even been legalized.
7. The overflowing of the repression occurs here with greater ease than in other
areas of public work, because the first turns on those who have been designated
“public enemies”: the criminal that damages individual and collective goods that are
highly appreciated –thus the condition of criminal, and not just illicit, behavior of the
act committed—and with it they put in risk the existence of society. They are,
therefore, a greater social opponent; an enemy even. It would be difficult to find a
more natural and vulnerable addressee of state actions. This explains the
performance of the persecutions and punishments, their phenomenology,
characteristics, consequences, and slow appearance of the means of protection for
the individual that faces the State as a defendant, and that may, in effect, be guilty,
but that may also be innocent of the charges made against him, and in any case
continues to be a human being.
8. In the exercise of civilization the imperious need for the State to provide security
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