37
V. CONCLUSION: THE RIGHT TO THE GUARANTEE OF RIGHTS, AS AN INTEGRATIVE
DIMENSION OF FUNDAMENTAL RIGHTS (FROM A DOMESTIC SOURCE OR THE
CONVENTION) IN A MODEL OF EXERCISE OF CONTROL FOR CONFORMITY WITH THE
CONVENTION
127. The rights provided for in Articles 8 (right to a fair trial) and 25 (judicial protection)
of the American Convention represent the most claimed rights and that have most
frequently been declared violated by the Inter-American Court along the more than twentyfive years that it has exercised its contentious jurisdiction. 179 This has further generated a
rich body of Inter-American case law that recognizes the intimate relationship that exists
between them, not without certain controversy among judges of previous compositions. 180
128. The right to a fair trial (Article 8), the right to judicial protection (Article 25), and the
general obligation contained in Article 1(1) of the American Convention have a close
relationship since the judicial protection referred to in Article 25 is one way to fulfill the
obligation to guarantee derived from Article 1(1) of the Convention; furthermore, such
judicial protection is linked to the right to be heard in terms of Article 8 and that it be
carried out with the minimum guarantees of due process laid out therein. In this sense,
since the case of Cesti Hurtado V. Peru (1999), the Inter-American Court established that
Article 25 is intimately linked to Article 1(1) as the State has the obligation to design and
enforce a remedy that should be properly applied. 181 Likewise, since its Advisory Opinion
OC-9/87182, the Inter-American Court established that Article 25 is linked to Article 8 in that
the remedies of amparo and habeas corpus must be substantiated in accordance with the
rules of due process of law.183
129. However, notwithstanding the obvious link between the three treaty provisions
mentioned above and developed in the Inter-American case law, it is possible to state that
within the design of the American Convention, the three articles maintain their autonomy
and specific content. This results in, among other factors, both in the obvious fact that each
of the provisions are found in different articles, as well as that Article 8 has a more general
language and regulates a wider range of procedures of either a criminal type, or of a civil,
labor, fiscal, or any other nature, in the logic of due process. Article 25, on the other hand,
establishes the rules of a remedy to protect any person against acts that violate his
fundamental rights. Therefore, both rights have their own origin, configuration, and
characteristics that must not be confused.
179
In effect, of the 172 cases that the Inter-American Court has resolved to date, violations of Article 8 (in
any chapter) have been declared in 136 occasions and of Article 25 in 134 cases. In 121 cases a violation of both
rights has been declared, while in only 14 cases only Article 8 was declared and in 13 only Article 25.
180
There are interesting debates that have taken place in the individual or dissenting opinions of former
presidents of the Inter-American Court, Antonio Augusto Cançado Trindade, Cecilia Medina and Sergio García
Ramírez, about binding nature, scope and the autonomy of Articles 8 and 25 of the Pact of San José.
181
Cf. Case of Cesti Hurtado V. Perú. Merits. Judgment of September 29, 1999. Series C No. 56, para. 168.
182
Cf. Judicial Guarantees in States of Emergency(Arts. 27(2) and 8 of the American Convention on Human
Rights). Advisory Opinion OC-9/87 of October 6, 1987. Series to No. 9, para. 24.
183
As established in the Case of Hilaire, Constantine and Benjamin et al. V. Trinidad and Tobago: “For the
right to an effective remedy within the meaning of Article 25 of the Convention to be preserved, it is essential that
the remedy be processed according to the norms of due process enshrined in Article 8 of the Convention, including
access to legal assistance.”
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