9
V.
The Inseparability between Articles 25 and 8 of the
American Convention if the Constant Case-Law of the InterAmerican Court.
23.
In its constant case-law, the Inter-American Court has consistently united, with
due reasoning, the consideration of the alleged violations of Articles 8 and 25 of the
American Convention, as duly exemplified in its Judgments on the cases of Barrios
Altos (Chumbipuma Aguirre et al.) versus Peru (of 03.14.2001, paras. 47-49), Las
Palmeras versus Colombia (of 12.06.2001, paras. 48-66), Baena Ricardo et al. versus
Panama(of 02.02.2001, paras. 119-143), Myrna Mack Chang versus Guatemala (of
11.25.2003, paras. 162-218), Maritza Urrutia versus Guatemala (of 11.27.2003, paras.
107-130), 19 Merchants versus Colombia (of 07.05.2004, paras. 159-206), Gómez
Paquiyauri Brothers versus Peru (of 07.08.2004, paras. 137-156), Serrano Cruz Sisters
versus El Salvador (of 03.01.2005, paras. 52-107), Caesar versus Trinidad and Tobago
(of 03.11.2005, paras. 103-117), Moiwana Community versus Suriname (of
06.15.2005, paras. 139-167), Indigenous Community Yakye Axa versus Paraguay (of
06.17.2005, paras. 55-119), Fermín Ramírez versus Guatemala (of 06.20.2005, paras.
58-83), Yatama versus Paraguay (of 06.23.2005, paras. 145-177), Mapiripán Massacre
versus Colombia (of 09.15.2005, paras. 193-241), and Gómez Palomino versus Peru
(of 11.22.2005, paras. 72-86).19
24.
Besides these Judgments, in others the Court has been particularly emphatic on
the need to follow an integrating hermeneutics (and never a disintegrating one) of
Articles 8 and 25 of the American Convention, taking them as a whole. For example, in
the case of Cantos versus Argentina (Judgment of 11.28.2002), the Court pointed out
the importance of the right to access justice, enshrined at the same time, lato sensu,
both in Article 25 and in Article 8(1) of the Convention, and promptly added that
"any norm or measure of the domestic order that imposes costs or in any other
way makes the access of the individuals to the tribunals difficult, (...) must be understood
as contrary to the previously mentioned Article 8(1) of the Convention." 20
25.
Article 8(1) is, therefore, in the correct understanding of the Court, closely
linked to the right to an effective recourse under Article 25 of the Convention. In this
same line of reasoning, in the case of Hilaire, Constantine and Benjamin et al. versus
Trinidad and Tobago (Judgment of 06.21. 2002) the Court evoked its obiter dictum in
Advisory Opinion n. 16 (1999) in the sense that there is no “due process of law” if a
party can not exercise its rights “in an effective manner” (i.e., if it does not have real
access to justice), and added that, “in order for a process to have real judicial
guarantees,” the observance of “all the requirements” that help “ensure or assert the
entitlement or the exercise of a right” is imposed (paras. 146-147).
26.
This is the great constant case-law of the Court, patiently built in the last years,
emancipating of the human being. And this is why I defend it firmly (since it has taken
up a long time of my reflection and it has benefited numerous parties), in the same
way that I firmly oppose the current intents within the heart of the Court to
19
And cf. also, in the same sense, its Judgments on the cases of Girls Yean and Bosico versus
Dominican Republic (of 09.08.2005, para. 201), and Palamara-Iribarne versus Chile (of 11.22.2005, paras.
120-189.
20
Paras. 50 and 52 of the mentioned Judgment.