-2ago, the former’s expectation of protection and the latter’s possibility of granting it will be
limited to the hypothesis of the formal proceedings before the judicial body. Indeed,
Article 8 alludes to “judicial” guarantees [Note: the title of the article in Spanish], and
then refers to a “tribunal [or judge].” However, this limited scope would be totally
insufficient nowadays to achieve the goals that the international system for the protection
of human rights has set itself. If the guarantees established in Article 8, which governs
the most relevant issues of procedural protection, are limited to the actions of the judicial
body, the definition of rights and freedoms by mechanisms that are formally different
from the judicial mechanism, but essentially close to the latter to the extent that they
serve the same end – to define rights and establish obligations - would not be protected.
6.
For example, in several countries the solution of disputes between the Public
Administration and the citizen is entrusted to the judicial body: in others, to jurisdictional
or administrative body located outside the Judiciary. In some States, once certain
information de facto and de jure has been established, the investigation of offenses and
the decision on whether there is criminal liability is entrusted to an administrative
authority, the Attorney General’s Office (el Ministerio Público) – which is neither judge
nor court – while in others, it is entrusted to trial judges, who have this formal and
material nature. Some transcendental decisions regarding harm to property, the
definition of rights between members of different social sectors, the responsibilities of
public servants, and measures of protection for children and adolescents (different from
those resulting from the violation of a criminal law) have been entrusted to judicial
instances, but others – that involve the denial of rights and the control of obligations –
are entrusted to instances of a different nature. Historic and contemporary national
experiences allow us to add new and abundant examples.
7.
The Inter-American Court’s case law concerning due process, judicial protection,
procedural guarantees or the preparation and execution of the defense of the individual –
all expressions that involve a sole concern – have evolved the content of due process of
law in a progressive direction – invariably “garantista” [privileging or prioritizing due
process and the rights of the individual]. Thus, the Court’s case law has established what
I have called “procedure’s ‘current frontier’” (separate opinion to Advisory Opinion OC16), which changes as necessary, not at whim or giving rise to uncertainty, to adapt the
defense of the individual to emerging requirements.
8.
Thus, the Court has established that the right of the foreign detainee to be
informed of the consular assistance he can receive – a right that is not asserted before
judicial body – is a right within the framework of due process; that the guarantees
established for criminal proceedings – embodied in Article 8(2) – are also applicable to
administrative proceedings, to the extent that the latter (as the former) involve a
manifestation of the punitive powers of the State; that the rights established by law in
favor of the accused in the criminal sphere must also be applied at other procedural
levels, when applicable, etcetera.
9.
All the above – and evidently I realize that they are situations of a different type,
but connected by a single guiding principle – reveals a sole purpose of protection that is
identified by the objective that the decisions of the authorities defining individual rights
and obligations, whatever these may be, should satisfy the minimum conditions of
objectivity, rationality and legality.
10.
In the Case of Claude Reyes et al., I have maintained that the decision of the
administrative body determining which information would be provided to the applicants
and which information would not be provided to them constituted an act that defined