CONCURRING OPINION OF JUDGE SERGIO GARCÍA-RAMÍREZ
IN THE JUDGMENT OF THE INTER-AMERICAN COURT
OF HUMAN RIGHTS
IN THE CASE OF LÓPEZ ÁLVAREZ v. HONDURAS,
OF FEBRUARY 1, 2006
I.
THE DUE PROCESS
1.
The due process constitutes an instrumental and secondary guarantee that
becomes, in all honesty, material and primary, as an “access key” to the national and
international protection of the rights and the claim on the duties. Its relevance has
been constantly pointed out. The jurisprudence of the Inter-American Court has done
it, and it has been pointed out by different members of this Tribunal. The judge Alirio
Abreu Burelli observes that “the due process, fundamental guarantee of the human
being is also a guarantee of respect for the other rights” (“Responsibility of the judge
and human rights”, in Revista de Derecho. Supreme Court of Justice, No. 19, Caracas,
Venezuela, 2005, p. 44), and the judge Cecilia Medina Quiroga points out that “the due
process is an angular stone of the human right’s protection system; it is, by
excellence, the guarantee of all human rights and a requirement sine qua non for the
existence of a Constitutional State” (The American Convention: theory and
jurisprudence. Life, personal integrity, due process, and judicial recourse, University of
Chile, Law School, Human Rights Center, San Jose, Costa Rica, 2003, p. 267).
2.
The matters of the due process keep on appearing in a significant manner in the
jurisdictional work of the Inter-American Court on Human Rights: meaningful in a
double dimension; on one hand, in what refers to the number of cases in which
matters of the due process are discussed; on the other hand, in what refers to the
subject of cases --and even of the advisory opinions --, that concur to form a good
part of the Inter-American case-law, with a notable repercussion –growing and
evident, in the last years – in the judgments of many national courts.
3.
In different Concurring and reasoned opinions I have taken up these matters. I
have also done so, in some recent presentations on behalf of the Inter-American Court
or in relation to its tasks: thus, the XII Encounter of Presidents and Magistrates of the
Constitutional Courts and Constitutional Chambers of Latin America “The constitutional
guarantees of the criminal due process”, summoned by the Supreme Court of Uruguay
and the Konrad Adenauer Foundation (Punta del Este, Uruguay, October 10-14, 2005),
and the “International Training Course on Reforms to the System of Criminal Justice in
Latin America”, organized by the Latin American Institute of the United Nations for the
Prevention of Crime and Treatment of the Criminal, Institute of the United Nations for
Asia and the Far East for the Prevention of Crime and Treatment of the Criminal and
the International Cooperation Agency of Japan (San Jose, Costa Rica, July 27, 2005).
4.
On those opportunities, among others, I have mentioned the quantitative
importance of this matter in the Inter-American Court on Human Rights’ case-law. The
statistics recollected by it –that is now found in the volume The Inter-American Court
on Human Rights. A Quarter of a Century. 1979-2004 (San Jose, Costa Rica, 2006),
which puts in evidence that the Tribunal has declared the existence of a violation to
Article 8 (“Right to a Fair Trial”) of the American Convention on Human Rights in 43
cases, which are the great majority on which it has issued a ruling, as well as the
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