131. With this, I go on to my final considerations regarding a matter that has been
my flag throughout all my years as a Full Judge of the Inter-American Court: the right
of human beings to a fair trial – both national and international – as a right to the
realization of justice, thus becoming an imperative of the jus cogens. The present case
of the Castro Castro Prison highlights this matter, in order to achieve the overcoming
of private vengeance by public justice, - as can be concluded from Aeschylus’ The
Oresteia.
132. It is not my objective to reiterate here everything I have written in this sense,
but instead point out some aspects regarding the matter, which become especially
relevant within the context of the present Judgment of Interpretation in the case of
the Castro Castro Prison. The right to a fair trial lato sensu (the right to jurisdictional
assistance) is a basic pillar of the protection of human rights. It is enshrined in the
American Convention, with regard to both the national (Articles 25 and 8) and
international (Article 44) realm, being a real right to Law.
1.
The Right to a Fair Trial Lato Sensu.
133. In its constant jurisprudence, the Inter-American Court, in relation to the
realm of the domestic law of the States Parties to the American Convention, has
correctly assumed the definition lato sensu of the right to a fair trial, when it has
mentioned the intimate correlationship between the right to an effective recourse
(Article 25) and the guarantees of the due process of law (Article 8). With regard to
the international realm, the right to make an individual petition, conceived with the
most ample liberality (Article 44) has proven to be an effective means of solving not
only individual cases, but also cases of massive and systematic violations to human
rights.101
134. More than twelve years ago, in the Judgments of the Court on preliminary
objections in the cases of Castillo Páez and Loayza Tamayo (of 01.30.1996 and
01.31.1996, respectively) regarding Peru, I stated, in my Concurring Opinions, the
arguments in support to the granting of the locus standi in judicio to the petitioners in
all the stages of the proceedings before the Court (paras. 14-17). Said arguments
were taken into account for the introduction of the historic changes made by Article
23 of the third, and fourth, and current, Rules of Procedure of the Court (of 1996 and
2000). In my extensive Concurring Opinion in the Court’s Judgment (on preliminary
objections in the case of Castillo Petruzzi et al. versus Peru (of 09.04.1998), I pointed
out the fundamental nature of the right to an individual international petition (Article
44) (paras. 3 and 36-38), as a “historical rescue” of the individual’s position as a
subject of International Human Rights Law, endowed with full international procedural
capacity (paras. 5 and 12).
135. Likewise, I revised the historia juris of said right to petition (paras. 9-15), and
I mentioned the expansion of the notion of “victim��� in the jurisprudence under human
rights treaties (paras. 16-19), as well as referring to the autonomy of the right of
individual international petition vis-à-vis the domestic law of the States (paras. 21,
27, and 29). And I warned that, if it were not for the exercise of this right, justice
would not have been done in many cases of grave violations (paras. 33 and 35).
.
A.A. Cançado Trindade, "The Right of Access to Justice in the Inter-American
System of Human Rights Protection", in Italian Yearbook of International Law (2007)
(in press).
101