3
idem), effect of the judgment, specific aspects of the processing of minors that incur in
behaviors criminally established by law, etcetera.
II.
COMMUNICATION OF THE REASON FOR THE ARREST
8.
The judgment issued by the Court in the Case of López Alvarez v. Honduras
(February 1, 2006) focuses on matters of the due process, even when it also takes into
account some new subjects that had previously not been dealt with by the InterAmerican Court, as is the case with the violation to the liberty of (thought and)
expression referring to the use of the Garifuna language by the victim while he was
imprisoned, something that possesses an autonomous entity of its own, and also has a
specific interest in the circumstances of the application of the custodial measures, as I
will mention infra.
9.
The establishment of the subject of the proceedings –I use this expression
deliberately; later on I will refer to the process, itself --, that is, the precision and
reasonable verification of the elements that explain and give an action of the State
legal standing has a deep impact on a person’s rights and liberties, and is a central
issue in these matters. It not only justifies interventions that would otherwise be
absolutely illegitimate (for example, interferences with a person’s liberty, security,
property), and establishes the border between the law and its essential limitations
(under the terms traditionally acknowledged and firmly provided by, among other
instruments, the American Declaration of the Rights and Duties of Man –Article
XXVIII—and the American Convention –Articles 27 and 29 through 32--), but it also
offers the rational and necessary foundations (although not enough by itself) so that
the individual (as a suspect or accused, at its time) may confront those interventions
that occur at different stages, under different names and with different circumstances,
invariably restrictive of the exercise of rights and liberties.
10.
It is inexcusable that any person affected by the persecutory activity of the
State know of the motive (and its meaning, with its possible repercussions) of the
same in a timely manner, so that he may confront it in an adequate manner through
acts of defense, normally oriented in the sense that derives from the knowledge of that
motive. I use this last word, not employed in the American Convention, to establish the
scope that I believe the expressions “reasons for his detention” and “charge or charges
against him”, used in Article 7(4) of the Pact of San Jose have.
11.
In essence, the international norm refers to enough information to demonstrate
the legitimacy of the state’s actions (administrative or judicial, at their times) and offer
the possibility of a timely and adequate defense. It should not be understood that this
duty of the State and this right of the individual are satisfied with the reference to
stipulations of criminal codes, which may be insufficient or unintelligible for the
subject. It is precise that it receives information on the facts attributed to him (as
motives for the state’s actions). In a certain way this requirement of the Law (national
and international) on human rights, comes to correct the hypothesis –unreal and
unequal—which assumes, based on an old and debated presumption, that everybody
knows the law and that they are immediately aware that they have observed it or
violated it.
12.
The Judgment that I now comment distinguishes how it should be done, based
on the American Convention, both in the case of an arrest that occurs in compliance
with a court order –which supposes previous procedural acts – and the one that occurs
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