6
contentious matters is concerned, eloquent illustrations of their firm stand in support of
the integrity of the mechanisms of protection of the two Conventions are afforded, for
example, by the decisions of the European Court in the Belilos versus Switzerland case
(1988), in the Loizidou versus Turkey case (Preliminary Objections, 1995), and in the I.
Ilascu, A. Lesco, A. Ivantoc and T. Petrov-Popa versus Moldovia and the Russian
Federation case (2001), as well as by the decisions of the Inter-American Court in the
Constitutional Tribunal and Ivcher Bronstein versus Peru cases (Jurisdiction, 1999), and
in the Hilaire, Constantine and Benjamin and Others versus Trinidad and Tobago
(Preliminary Objection, 2001).
16.
The two international human rights Tribunals, by correctly resolving basic
procedural issues raised in the aforementioned cases, have aptly made use of the
techniques of public international law in order to strengthen their respective
jurisdictions of protection of the human person. They have decisively safeguarded the
integrity of the mechanisms of protection of the American and European Conventions
on Human Rights, whereby the juridical emancipation of the human person vis-à-vis
her own State is achieved. They have, furthermore, achieved a remarkable
jurisprudential construction on the right of access to justice (and of obtaining
reparation) at international level.
17.
In its historical Judgment in the case, concerning Peru, of the massacre of
Barrios Altos (2001), e.g., the Inter-American Court warned that provisions of amnesty,
of prescription and of factors excluding responsibility, intended to impede the
investigation and punishment of those responsible for grave violations of human rights
(such as torture, summary, extra-legal or arbitrary executions, and forced
disappearances) are inadmissible; they violate non-derogable rights recognised by the
International Law of Human Rights. This case-law has been reiterated by the Court
(with regard to prescription) in its decision in the Bulacio versus Argentina case (2003).
c)
Substantive Law.
18.
As to substantive law, the contribution of the two international human rights
Courts to this effect is illustrated by numerous examples of their respective case-law
pertaining to the rights protected under the two regional Conventions. The European
Court has a vast and impressive case-law, for example, on the right to the protection of
liberty and security of person (Article 5 of the European Convention), and the right to a
fair trial (Article 6). The Inter-American Court has a significant case-law on the
fundamental right to life, comprising also the conditions of living, as from its decision in
the paradigmatic case of the so-called "Street Children" (Villagrán Morales and Others
versus Guatemala, Merits, 1999).
19.
Yet another example can be recalled. The definition of the crime of torture found
today in two of the three co-existing Conventions against Torture (the U.N. Convention
of 1984, Article 1, and the Inter-American Convention of 1985, Article 2) owes its
contents to international human rights case-law, rather than to the tipification of the
crime of torture at domestic law level. In fact, the constitutive elements of torture in
the definition found in the two aforementioned Conventions17 ensue from the
jurisprudential construction of the old European Commission of Human Rights in the
17
. Namely, severe physical or mental suffering, intentionally inflicted, to obtain information or a confession,
with the consent or acquiescence of authorities or other persons acting in an official capacity.
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