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in Part I of the Convention. When a right established in the Convention is violated, it is
evident the disregard of the duties (some of them) established in Article 1(1). There is,
thus, a double simultaneous infringement: of Article 1(1) and of the rule that takes in
the violated right. Conversely, the Court has suggested that there can be a violation of
Articles 8 and 25 - also related to, of course, Article 1(1)- without necessarily invoking,
to declare it, a violation of "material" rights.
5. However, the State's obligation to guarantee a right or liberty, as established in
Article 1(1), is satisfied in the light of the above mentioned Articles 8 and 25, to wit,
"read" - that is to say, understood or applied- in conjunction with- the article to which
the "substantive" right, whose violation corresponds to investigate, refers to.
Logically, Articles 1(1), 8 and 25 and the statement or statements referred to by the
violated "material" rights are connected. This explanation is not different, of course,
from the jurisprudence of the Inter-American Court, though it is not always expressly
stated or shown by the terms used by the Tribunal when it declares the existence of
violations and establishes the corresponding reparations (which are, in fact, "legal
consequences", they are not, strictly and only, reparations, of the regulatory provisions
of the violation of the facts of the case at trial).
6. With regard to the above mentioned linkage to the provisions of the Convention,
there is a detailed Separate Opinion of the Judge Cecilia Medina Quiroga, concerning
the Judgment of the Case of Moiwana Community v. Suriname, of June 15, 2005. In
such opinion- to which I adhered- her author stated that the Court "should have
declared the violations of the Articles 4 and 5, in relation to the failure to comply with
the obligation to investigate, because this was part of the obligation to guarantee
against the deprivation of life and the adverse effects on personal integrity that were
alleged in the case” (para. 5 of the Opinion).
7. Article 8 of the American Convention recognizes, under the title “Right to a Fair
Trial”- which does not exhaust or describe in full the content of such provision- the
right to access to justice, to request legal protection, to claim for rights and liberties,
which also the jurisprudence of the Court refers to as due process of law. Our caselaw does not, still, offer a precise connotation of such access, frequently invoked, nor
even a rigorous delimitation between the right to access and the right to due process
of law (rather than recognizing and detailing a series of rights comprised by that).
Notwithstanding, it is clear that:
a) everyone can turn to the established State instances to search for justice under the
terms of Article 8(1), to assert, claim or recover a right; and the State is obliged to
established sufficient, proper and efficient instances to that end and to provide a good
service. This right (petition and, in its case, legal action or contribution to the legal
action, is independent from the substantive right invoked, as the procedural doctrine
has been established it a long time ago); and
b) the State must satisfy its obligation to guarantee, in accordance with the already
mentioned supra, in compliance with the obligation established in Article 8 and, if
applicable, Article 25. If a violation is not investigated and the State duly protects the
individual, the State is infringing on these provisions. The Court will so declare.
8. Therefore, it is reasonable that, when declaring the infringement of Articles 8 and
25, it is worth mentioning the infringement that derives from the duty to investigate,
an aspect of the obligation to guarantee established in Article 1(1) (it could also be
said that there has been an infringement of the “material” right and prove that, if there
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