6
accordance with the violations committed. The subsequent finding that establishes its
responsibility will take this set, not only each of its parts, into account, and the
conceptual separation will not deny the relations that exist among certain legally
protected interests, the respective rights, and the events in which the former were
harmed and the latter abridged.
24.
The above can be seen in various points, and especially in the analysis of Articles
8 (Right to Fair Trial) and 25 (Right to Judicial Protection). In both instances, they refer
to effective judicial protection, in accordance with conditions established in the course of
protracted evolution regarding this matter.
Deficiencies regarding due process
(abridgments of Article 8) are combated with judicial remedies (the instrument of Article
25), in which new violations of due process may in turn occur, now in the venue of the
protective proceeding established by the latter precept. Of course, it is also possible that
this same instrument -habeas corpus, amparo and similar means- may be invoked to
protect rights contained in all or almost all the provisions of the American Convention.
25.
There is, therefore, a borderline that persists between legally protected interests
and rights, in their respective hypotheticals, that may be analyzed separately. This
judgment does that, for example, inasmuch as it studies abridgment of Article 25 from
the standpoint of the violation of Article 7(6), regarding control over lawfulness of the
detention. I do not set aside the hypothetical, more complex than the one I mention
now, that there may be a distinction between the guarantees judge –or one acting as
such-, who acts in the criminal trial itself, to ensure respect for legality regarding
evidence and precautionary measures (which is another way to comply with the mandate
of Article 7(6)) and the judge who oversees the lawfulness or constitutionality of actions
by the authorities, established as a tribunal that is external to the criminal proceeding,
and to whom one resorts based on Article 25 of the Convention and on the numerous
domestic provisions that regulate this matter.
26.
Regarding this same point, we must take into account that, under the terms of
Article 27(2) of the Convention, there is the possibility of suspending the right to fair trial
set forth in Article 8, but this possibility does not exist regarding those guarantees that
are indispensable for the protection of the substantive rights whose suspension is
forbidden, and these are precisely those mentioned in Article 25, as the Inter-American
Court has pointed out in advisory opinions regarding amparo and habeas corpus and in
adjudicatory matters in which this criterion has been applied. In this regard, we must
consider, especially, Advisory Opinions OC-8/87, on “Habeas Corpus in Emergency
Situations,” of January 30, 1987, and OC-9/87, regarding “Judicial Guarantees in States
of Emergency,” of October 6, 1987. There is doubtless a need to take into account the
requirements of due legal process when assessing compliance with Article 25. It would
be unacceptable for the protection offered by this Article to be diminished or cancelled
through procedures that disregard indispensable procedural rights before the habeas
corpus or amparo jurisdiction.
VI.
Due process.
27.
The Anglo-Saxon term due process -translated in some countries as “garantías
esenciales del procedimiento” [essential procedural guarantees]- is one of the most
formidable tools for protection of rights. It is also, in itself, a right and a guarantee for
the defendant. It enables or realizes effective judicial protection. It involves access to
formal justice, such as a hearing, evidence, and pleadings, and to material justice, as the
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