90
version of the quotation.) in order for all persons to be able to defend their rights
adequately vis-à-vis any type of State action that could affect them.55 That is to say
that the due process of law must be respected in any act or omission on the part of
the State bodies in a proceeding, whether of a punitive administrative, or of a
judicial nature.
125. The Court makes the observation that the range of minimum guarantees
established in section 2 of Article 8 of the Convention is applied to the realms to
which reference is made in section 1 of the same Article, that is, “the determination
of his rights and obligations of a civil, labor, fiscal, or any other nature.” This reveals
the broad scope of the due process; the individual has the right to the due process
as construed under the terms of Articles 8(1) and 8(2) in both, penal matters, as in
all of these other domains.
126. In any subject matter, even in labour and administrative matters, the
discretionality of the administration has boundaries that may not be surpassed, one
such boundary being respect for human rights. It is important for the conduct of
the administration to be regulated and it may not invoke public order to reduce
discretionally the guarantees of its subjects. For instance, the administration may
not dictate punitive administrative actions without granting the individuals
sanctioned the guarantee of the due process.
127. The right to obtain all the guarantees through which it may be possible to
arrive at fair decisions is a human right, and the administration is not exempt from
its duty to comply with it. The minimum guarantees must be observed in the
administrative process and in any other procedure whose decisions may affect the
rights of persons.
128.
The European Court has pronounced itself on this subject, pointing out that:
…the principles stipulated in paragraph 2 (art. 6-2) and 3 (to wit, sections a, b and d)
[…of the European Convention of Human Rights] are applied mutatis mutandis to the
disciplinary proceedings to which section 1 refers (art. 6-1), in the same manner in
which they are applied to cases where a person is charged with an offence of a penal
nature.56
129. Justice, done through the due process of law, as a legally protected true
value, must be ensured in all disciplinary proceedings, and the States cannot evade
such obligation based on the argument that the due guarantees of Article 8 of the
American Convention do not apply in the case of disciplinary and not penal sanctions.
Allowing the States to make such interpretation would be equivalent to leaving up to
their free will the decision of whether or not to observe the right of all persons to a
due process.57
55
cfr. Constitutional Court Case. supra, note 7, para. 69; and Judicial guarantees in States of
Emergency (art. 27.2, 25 and 8 American Convention on Human Rights). Advisory Opinion OC-9/87 of
October 6, 1987. Series A N° 9, para. 27.
56
cfr., inter alia, Eur.Court. H.R., Albert and Le Compte judgment of 10 February 1983, Series A
no. 58, para 39.
57
cfr., inter alia, Eur. Court. H.R., Campbell and Fell judgment of 28 June 1984, Series A no. 80,
para. 68; Eur. Court H.R., Deweer judgment of 27 February 1980, Series A no. 35, para. 49; and Eur.
Court H.R., Engel and others judgment of 8 June 1976, Series A no. 22, para. 82.
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