2
7.
For the purposes of the instant case, we could take as an example the mission
of constitutionality courts, which cannot conduct civil or criminal proceedings, as the
case may be, but are only empowered to verify that proceedings and any decisions
render thereunder are consistent with the National Constitution. The situation with
the Inter-American Court is similar. The Court can only confront domestic rules –
laws, administrative acts, jurisdictional resolutions, without limitation- to the
provisions of the Convention and rule on their consistency in order to establish, if
applicable, the State’s international liability for failing to fulfill its obligations
thereunder. The Court does not develop a new stage –or instance- i.e. ordinary
proceedings. Proceedings begin, develop and conclude in the domestic jurisdiction.
Therefore, the international court, as much in the same manner as constitutionality
courts and as opposed to trial courts, cannot assess the facts and the evidence, nor
is it empowered to order an acquittal or conviction.
8.
Nevertheless, the essence of the human rights protection system, applied to
conventional rules, involves the need to value the fairness, opportunity, need,
adequacy and proportionality of certain facts from the point of view of human rights.
This is an undeniable fact that, as reflected by the Inter-American Court’s
precedents, has already been analyzed when considering the limits and restrictions
applicable to the exercise of rights or the suspension of the State’s obligation in that
regard. The foregoing considerations also apply to the guarantee regime set forth in
the Convention –inherent to the natural obligations imposed upon States,- which
may and should also be subject to assessment patterns in order to estimate its
efficacy and validity and, in that sense, its consistency with the Convention itself.
9.
The State’s general obligation to guarantee the respect for human rights as
set forth in Article 1(1) of the Pact of San José embodies the duty to effectively
promote prosecution of any illegal act that violates the provisions of the Pact and
that affects interests enjoying legal protection as human rights. Evidently, the act of
prosecuting (which may consist of a series of acts by the State: crime definition,
formal accusation, judgment, enforcement; all of them having large criminal
relevance and significant impact in other areas of the public rules system in the
event of illegal conduct) must be consistent with the duty to safeguard certain rights
embodied therein. Otherwise, the act of prosecuting would no longer fulfill said duty
and would result in non-compliance with a State’s obligation, which should not be
fulfilled through inappropriate means, arbitrarily or unreasonably.
10.
Indeed, said safeguard should in fact be consistent with a series of elements
whose examination allows to assess the State’s fulfillment of its duties: the legally
protected interest, the extent and circumstances of infringement, the conduct of the
perpetrator, the need to avoid leniency –which paves the way for impunity- and
excesses –which result in tyranny. Both leniency and excess, which involve a
disparity between the violation committed and the public legal reaction, are in
conflict with the rationality rule that must always guide a State’s conduct upon
exercising its powers.
11.
Therefore, the analysis of the events from the human rights perspective
cannot disregard the necessary balance between the violation of rights committed
and the enforcement of the safeguards –within the criminal jurisdiction- undertaken
by the State. These considerations, as mentioned before, do not intent to replace the
trial court with the international court in determining if the illegal conduct that
violates human rights falls under the definition of the crime and in imposing liability
and punishment.
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