3
7.
This “interaction” becomes, in reality, a “live interaction”6 with intense
communicating vessels that bring about “jurisprudential dialogue,” in the sense
that both jurisdictions (the domestic and the international) must, necessarily, head
to “domestic” and “conventional” norms under certain circumstances. This occurs,
for example, regarding the legality of a detention. The action taken by domestic
bodies (including the judges), in addition to applying the norms required by the
domestic forum, are required to follow the guidelines and rules of those
international treatises that the State, in use of its sovereignty, expressly
recognized and whose international commitment it assumed.
In turn, the
international forum must assess the legality of the detention in light of the
domestic norms, given that the American Convention itself turns to the domestic
legislation in order to examine the conformity with the convention of the actions
taken by the domestic authorities, since Article 7(2) of the Pact of San Jose turns
to “the constitution of the State Party concerned or by a law established pursuant
thereto” in order to better decide on the legality of the detention as a parameter of
conformity with the convention. The domestic judges, on the other hand, must
comply with the other provisions enshrined in Article 7 itself so as to not violate the
conventional right to personal liberty, also heading to the interpretation that the
I/A Court of H.R. has carried out regarding the provisions of said numeral.
8.
So as to determine whether the actions of national judges are compatible
with the Pact of San José, in certain cases it will be necessary to analyze their
actions in light of domestic norms and always heading to the American Convention,
especially in order to assess what might be called “the conventional due process
standard” (in broad terms).7 This analysis, therefore, can not constitute a
“threshold issue,” but rather it essentially represents a “decision on the merits,”
where the issue will be discussed, inter alia, of whether an exercise of “the control
of compliance” by domestic courts was compatible with the obligations undertaken
by the respondent State and in light of Inter-American jurisprudence itself.
9.
The prior considerations, of course, do not grant absolute jurisdiction to the
I/A Court of H.R. to review, in any case or circumstance, the actions of the
domestic judges in light of the domestic legislation, each time this implies a
reexamination of the facts, assess the evidence, and render a judgment that may
possibly serve to confirm, modify, or reverse a domestic verdict; an issue that
clearly exceeds the competence of said international jurisdiction upon substituting
6
Statement by the current president of the I/A Court of H.R., Diego García-Sayán; Cf. His work,
“Una Viva Interacción: Corte Interamericana y Tribunales Internos”, [A Live interaction: Inter-American
Court and Domestic Tribunals] in the Inter-American Court of Human Rights: a Quarter Century: 19702004, San José, Inter-American Court of Human Rights, 2005, pp. 323-384.
7
Eventhough “due process” is not stated in an express manner in the American Convention, all
the rights of the Pact and the development of the jurisprudence of the I/A Court of H.R., have cerated,
In an
interesting concurring opinion, Sergio García Ramírez notes that "[...]
in its entirety, what might be called “the due process standard” composed of various rights.
Among the issues examined most frequently by the Inter-American Court is the so-called due process of
law, a concept developed by Anglo-American case law and regulations. The Pact of San José does not
invoke “due process” literally. However, with other words, it organizes the system of hearing, defense
and decision contained in that concept. It fulfills this mission – essential for the protection of human
rights – in different ways and with different provisions, including Article 8, which is entitled “Right to a
Fair Trial” (Note: “Judicial Guarantees” in Spanish). The purpose of this article is to ensure that the
State bodies called on to determine an individual’s rights and obligations – in many aspects – will do so
using a procedure that provides the individual with the necessary means to defend his legitimate
interests and obtain duly reasoned and justified rulings, so that he is protected by the law and
safeguarded from arbitrariness. (Para. 3, of the concurring opinion formulated, in relation to the
Judgment in the Case of Claude Reyes et al. v. Chile. Merits, Reparations and Costs. Judgment of
September 19, 2006. Series C No. 151).
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