44
foreign person, even when said person is a migrant in an irregular situation, may
exercise his or her rights and defend his or her interests effectively and in full
procedural equality with other triable individuals.145
144. It is an acknowledged fact that, since there was no specific regulation of
Decree Law 16 of 1960, its substantiation was subject to the procedure established in
Law 38 of 2000, related to administrative procedures in general.146 That is to say, it
was necessary to resort to supplemental norms. In this respect, the procedure that
resulted in the punitive administrative act by which Mr. Vélez Loor was deprived of
liberty, was not only decided inaudita parte (supra para. 60) but also it did not offer
the possibility of exercising the right to defense, to a hearing or to adversarial
proceedings’ safeguards, as part of the guarantees of due process of law, leaving the
arrested migrant to the absolute discretion of the punishing power of the National
Office of Immigration. In fact, the State "accept[ed] responsibility [given that] the
accused received no written and detailed formal communication regarding the charges
brought against him; Mr. Vélez was not given time or adequate means to prepare his
defense; Mr. Vélez was not assisted by a counsel; he was also not permitted to
exercise his right to defense during the substantiation of the administrative procedure
that resulted in the deprivation of his liberty.”
145. Furthermore, the Court has sustained that the right to defense binds the State
to treat the person, at all times, as a true party to the proceeding, in the broadest
sense of this concept and not simply as an object thereof.147 Article 8(2)(d) and (e)
establish the right of the accused to defend himself or herself personally or to be
assisted by legal counsel of his or her own choosing, and, if the accused does not so
chose, the accused has the inalienable right to be assisted by a counsel provided by
the State, paid or not as the domestic law provides. In this respect and for cases
concerning non-criminal procedures, the Tribunal has previously established that “the
circumstances of a particular case or proceeding—its significance, its legal character,
and its context in a particular legal system—are among the factors that bear on the
determination of whether legal representation is or is not necessary for due
process.”148
146. The Court has considered that, in the administrative or judicial instances,
where decisions may be taken by which an accused may be deported, expelled, or
deprived of freedom, the provision of free public legal aid service is necessary to
avoid the violation of the right to due process.149 In fact, in cases like the instant
case, in which the consequence of the immigration procedures could be the
145
Cf. The Right to Information on Consular Assistance in the Framework of the Guarantees of the
due Process of Law. Advisory Opinion OC-16/99 of October 1, 1999. Series A No. 16, para. 117 and 119;
and Juridical Condition and Rights of the Undocumented Migrants, supra note 82, para. 121, and Case of
Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago. Merits, Reparations, and Costs. Judgment
of June 21, 2002. Series C No. 94, para. 146.
146
In this respect, the State pointed out that “[a]s administrative act, Resolution [7306] was subject,
in first instance, to the General Administrative Procedure contained in Law 38 of July 31, 2000, a rule that
governs the administrative activity of the State and establishes with the utmost clarity the remedies for the
annulment and reversal of unlawful administrative acts.” See also, Statement rendered by María Cristina
González at the public hearing held before the Inter-American Court on August 25, 2010 and Law N° 38 of
July 31, 2000 that approves the Organic Statutes of the Administration’s Office, regulates the General
Administrative Procedure and stipulates the Special Provisions published in the Official Gazette on August 2,
2000 (case file of the evidence, volume VII, annex 9 of the response to the application, folio 2792 to
2855).
147
Case of Barreto Leiva v. Venezuela, supra note 96, para. 29.
148
Exceptions to the Exhaustion of Domestic Remedies (Articles 46.1, 46.2.a) and 46.2.b) American
Convention on Human Rights). Advisory Opinion OC-11/90 of August 10, 1990. Series A N.11 para. 28.
149
Cf. Juridical Condition and Rights of the Undocumented Migrants, supra note 82, para. 126.
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos