5
certain protection.
18. In that jurisprudence the dynamic, expansive nature of the due process –to
which I referred in my mentioned Concurring Opinion to OC-16-- can also be
observed, to which new data that contributes to the most complete protection of the
rights –and juridical rights deposited in them— through this notion is added. The
incorporation of the right to know of the possibility to receive consular assistance,
which favours the foreign detainee, has become plausible and its non-observance,
negative, or detriment vitiates the procedure and deprives the judgment issued over
those weak grounds of validity. This affirmation, originally made by the InterAmerican Court in the OC-16, was later collected in the solution of cases before the
International Court of Justice: LaGrand, of Germany v. United States, and Avena and
other Mexicans, of Mexico v. United States.
B) Due process and fight against crime
19. Upon starting to know of the Case of Fermín Ramírez v. Guatemala and issuing
the corresponding judgment, the Court has established once again the sense and
limits of its function: a) know the need of the State to fight crime with strength, task
that constitutes a peremptory duty of the latter, and b) at that same time it ensures
that said indispensable battle be carried out as per the Law and pursuant to the
principles and rights it recourses. When deciding, the Inter-American Court acts
pursuant to its strict jurisdiction: it rules on the basis of the compatibility or
incompatibility of a certain act of the State, subject to controversy, with the terms of
the American Convention that the Court itself applies. It cannot do anything else. It
is a court of human rights, not a criminal court. The research of criminal acts and
the imposition of punishments corresponds to national courts. The Court does not
question this function, it does not invade it, it does not prevent it. It has never tried
to do so. It respects it.
20. The Inter-American Court has never assumed the defense –or the indictment—of
the possible responsible parties of an illicit act. It has strictly limited its actions, and
will continue to do so, to deciding upon the interpretation and application of the legal
code it can invoke: the American Convention on Human Rights. The national
instances must apply, with great care and efficiency, respecting the stipulations of
this Convention, the norms that correspond to them: the criminal codes and other
bodies of law called upon to punish criminal acts. Whoever has read the decisions of
the Inter-American Court, even superficially, will have noticed that this has been its
invariable position. It could not be any different.
21. In the judgment corresponding to the Case of Castillo Petruzzi, of May 30, 1999,
the Court held that “it is not empowered to issue a judgment regarding the nature
and seriousness of the crimes attributed to the alleged victims,” and it stated that it
would not examine “the alleged criminal responsibility of the alleged victims, which
corresponds to the national jurisdictions.” (paras. 89-90) Finally, the Tribunal
declared the existence of certain violations in the process against the defendants
that had motivated the examination of the case and stated “that it would guarantee
them a new trial with the complete observance of the due process of law.” (operative
paragraph 13).
22. In the case referred to in the judgment to which I attach this Concurring Opinion,
the State was not charged with a brutal violation of the guarantees inherent to the
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