-2application is not strictly limited to judicial remedies, “but rather the procedural
requirements that must be observed to be able to speak of effective and appropriate
judicial guarantees so that a person may defend himself adequately when any type
of act of the State affects his rights.” It adds that the State’s exercise of its power to
sanction “not only presumes that the authorities act with total respect for the legal
system, but also involves granting the minimum guarantees of due process to all
persons who are subject to its jurisdiction, as established in the Convention” (para. 68).
In paragraph 71, the Court emphasized that “although the jurisdictional function belongs,
in particular, to the Judiciary [...], other public body or authorities may exercise functions
of the same type,” and added that, consequently, the expression “competent judge or
court” required to “determine” rights referred “to any public authority, whether
administrative, legislative or judicial, which, through its decisions determines individual
rights and obligations.” The Court concluded this reasoning by stating that “any State
body that exercises functions of a substantially jurisdictional nature has the
obligation to adopt decisions that are in consonance with the guarantees of due legal
process in the terms of Article 8 of the American Convention.”
This means that Article 8 is applied when a State body is exercising jurisdictional powers,
and it does not appear possible to argue this with regard to an official’s refusal to provide
information to a private individual. In keeping with its position, in the Constitutional Court
case, the Court proceeded to examine whether the dismissal of the justices, alleged
victims in the case, complied with each and every requirement of this article, such as the
impartiality, independence and competence of the State body and the right to defense of
those affected (considerations, paragraphs 74, 77 and 81 to 84).
5.
In the Case of Baena Ricardo et al., the Court stated the same position, because
the case was of a similar nature, since it also dealt with the State’s exercise of its powers
to sanction (see considerations, paragraphs 124 and 131). In the Case of IvcherBronstein, considerations, paragraph 105, repeats paragraph 171 of the Constitutional
Court judgment and establishes as grounds for the violation of Article 8 the impediments
that had been placed on the victim to defend himself, such as not informing him that his
file had been lost, not allowing him to reconstruct it, not advising him of the charges of
which he was accused, or allowing him to present witnesses (considerations, paragraph
106). In the Case of Yatama, the Court repeated its position that Article 8 applied to
“procedural bodies” (paragraph 147); it stated that, in this case, the Supreme Electoral
Council exercised jurisdictional functions, not only owing to the actions that it executed in
this case, but because Nicaraguan legislation described these functions as jurisdictional in
nature (paragraph 151).
6.
None of the above corresponds to the case we are examining. The act that
affected the right of Mr. Claude Reyes et al. was an official’s refusal to allow a private
individual access to information; the proceedings used to contest this refusal was the
application for protection and this is why we have concurred with the Court in finding a
violation of Article 25, because the Chilean appellate court did not comply with the basic
tenet for any judicial decision, that it should be justified.
7.
However, this conclusion does not imply leaving the right to request access to
information to the discretion of the State. The right to petition authorities, established in
general in the laws of the countries of the region and certainly in Chile (Article 19(14) of
the Chilean Constitution) requires a response from the State, which should be, in the