-3rights – in this case, the right to seek and receive specific information, in the terms of
Article 13 of the Pact of San José – and, when issuing this decision, specific guarantees
established in Article 8 of the Convention were not respected. This failure determined that
in addition to infringing Article 13 on freedom of thought and expression, declared
unanimously by the members of the Inter-American Court, there was also a violation of
Article 8, according to the majority, although not according to two members of the Court,
for whose opinion I have the highest esteem. Consequently, owing to the consideration
that my colleagues merit – whether we agree or disagree – I wish to state my personal
sections of view in a comparison of legitimate and constructive opinions.
11.
Obviously, during the administrative stage of their démarches, the persons who
requested information were not participating in a judicial hearing before a judge or court,
but intervened in an administrative procedure before an administrative authority.
Nevertheless, I consider that the latter was obliged to act as prescribed by Article 8, in all
that was pertinent and applicable, to the extent that his decision would define the right of
those requesting the information.
12.
The need to respect the requirements of Article 8 does not derive, in my
understanding, from the nature of the authority within the State’s structure, but from the
nature of the function that the latter exercises in the specific case and from the
transcendence that this can have in relation to the rights and obligations of the individual
who appears before that authority, exercising what he considers is his right and awaiting
the justified decision that should be taken on his request.
13.
The decision of that administrative authority could be contested before a judicial
body – as indeed was attempted – for the latter to take a final decision; and the
guarantee established in Article 8(1) of the Convention was clearly applicable to the said
judicial body. Nevertheless, it is also true that the existence of a means of controlling
legality by resorting to law does not imply that the first step in the exercise of the power
of decision on individual rights and obligations is removed from the procedural
guarantees in exchange for those that exist when the second step of that exercise is
undertaken - when proceedings have been filed before the judicial authorities. Strictly
speaking, the guarantees must be respected at all stages, each of which leads, either
provisionally or finally, to the determination of the rights. The control that the latter stage
ensures to the individual does not justify disregarding these guarantees during the first
stage (whatsoever leads to this), in the expectation that they will be respected
subsequently.
14.
Consequently, I consider that the guarantees established in Article 8, in keeping
with their meaning in the Court’s current case law, do not apply only to the legal action or
proceeding, but to the procedure on which the definition of rights and obligations
depends, as I have stated repeatedly. Once again I emphasize that this applicability has
the scope permitted by the characteristics of the corresponding procedure in each case.
Hence, I refer to the obligation to provide justification and not to each and every one of
the obligations established in Article 8, both literally and through the new scope that
inter-American case law has established.