8
exercised within the framework and in the light of the principles of the due process of
law (under Article 8 of the American Convention).17 Thus, in its ninth Advisory Opinion,
the Court considered that stated in Articles 25 and 8 of the American Convention as an
undividable whole.
20.
In the same Seminar in China, I added references to the jurisprudence
developed by the Court (as of the end of 1997 and the beginning of 1998), especially
as of the cases of Loayza Tamayo versus Perú, Blake versus Guatemala, and Suárez
Rosero versus Ecuador, in what refers to relevant aspects of the due process of law
and the right to an effective recourse (Articles 25 and 8 of the American Convention),
that, in the “second generation” of cases submitted to the knowledge of the Court
(after the initial cases on the fundamental right to life), went on to occupy a main
position in the consideration of the petitions presented before the Inter-American
Tribunal.18
21.
I consider this jurisprudential evolution a judicial patrimony of the InterAmerican system of protection and of the people of our region, and I firmly oppose any
attempt to deconstruct it. The Court has been faithful to its avant-garde position up to
this date. In its already famous Advisory Opinion n. 16, on The Right to Information on
Consular Assistance in the Framework of the Guarantees of the Due Process of Law (of
10.01.1999), that has been an inspiration for international jurisprudence in statu
nascendi on the subject (as amply acknowledged in the specialized bibliography), the
Court once again took as a whole the right to an effective recourse and the guarantees
of the due process of law (Articles 25 and 8 of the Convention). After pointing out the
need to interpret the Convention in the sense that “the regimen for the protection of
human rights must have all its own effects (effet utile)” (para. 58), - pursuant to the
necessarily evolving interpretation of the entire corpus juris of International Law on
Human Rights (paras. 114-155), the Court clearly and categorically stated:
“In the opinion of this Court, for “the due process of law” a defendant
must be able to exercise his rights and defend his interests effectively and in full
procedural equality with other defendants." (para. 117).
22.
That is, in the understanding of the Court, - in a brilliant Advisory Opinion that
is currently a framework in its case-law and its entire history (along with Advisory
Opinion n. 18 on the Juridical Condition and Rights of the Undocumented Migrants), there simply isn’t a due process without the effective recourse before the national
competent judges or tribunals, and that stated in Articles 25 and 8 of the Court is
inevitably linked, not only in a conceptual sense, but also – and especially – in its
hermeneutics. The Court added, in the mentioned Advisory Opinion n. 16 on the Right
to Information on Consular Assistance in the Framework of the Guarantees of the Due
Process of Law, that it must be alert to ensure and to be able to prove that all parties
"enjoy a true opportunity for justice and the benefit of the due process of law
(...)." (para. 119)
17
18
Paragraph 41.
Cf. A.A. Cançado Trindade, "The Right to a Fair Trial under the American Convention on Human
Rights", in The Right to Fair Trial in International and Comparative Perspective (ed. A. Byrnes), Hong
Kong/China, University of Hong Kong, 1997, pp. 4-11.