15. More recently, in its historic and pioneering Advisory Opinion OC-16/99 (October 1, 19999) on The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, which has been a source of inspiration for the international case-law in statu nascendi on the matter, the Inter-American Court emphasized that the prerequisites of the judicial guarantees (protected under Article 8 of the Convention) are intended to ensure or to assert the entitlement to a protected right or the exercise thereof. The Court also pointed up the essentially evolutive nature of the very concept of due process of law, which grows and expands to accommodate new requirements for the protection of the human person.1
16. In my concurring opinion on the latest and equally historic Advisory Opinion OC/18 (September 17, 2003) on the Juridical Condition and Rights of Undocumented Migrants (the first time an international court has addressed this matter), I pointed out the great significance that I attribute to the fundamental principles of law in any legal system, as follows:
Every legal system has fundamental principles, which inspire, inform and conform their norms. It is the principles (derived etymologically from the Latin principium) that, evoking the first causes, sources or origins of the norms and rules, confer cohesion, coherence and legitimacy upon the legal norms and the legal system as a whole. It is the general principles of law (prima principia) which confer to the legal order (both national and international) its ineluctable axiological dimension; it is they that reveal the values which inspire the whole legal order and which, ultimately, provide its foundations themselves. This is how I conceive the presence and the position of the principles in any legal order, and their role in the conceptual universe of Law. (...) From the prima principia the norms and rules emanate, which in them find their meaning. The principles are thus present in the origins of Law itself. The principles show us the legitimate ends to seek: the common good (of all human beings, and not of an abstract collectivity), the realization of justice (at both national and international levels), the necessary primacy of law over force, the preservation of peace. Contrary to those who attempt - in my view in vain - minimize them, I understand that, if there are no principles, nor is there truly a legal system. Without the principles, the "legal order" simply is not accomplished, and ceases to exist as such. (paragraphs 44 and 46).
17. In its jurisprudence constante, the Court has always relied upon general principles of law.2 Some general principles of law (such as the principles of equality and non-discrimination) are truly fundamental as they embody values and are built into the very foundation of the legal system. In the realm of the International Law of Human Rights, these fundamental principles include the principle of the dignity of the human person (which goes to the very purpose of law) and the principle of the inalienability of the human person’s inherent rights (which ties in with a premise that is basic to the construction of any corpus juris of the International Law of Human Rights). As I pointed out in my Concurring Opinion on the Court’s recent Advisory Opinion OC-18, in reality those principles
"form the substratum of the legal order itself, revealing the right to the Law of which all human beings are titulaires,3 independently of their [...] citizenship or any other circumstance" (paragraph 55).
18. As I see it, paragraphs 1 and 2 of Article 8 of the American Convention on Human Rights establish not just prerequisites of due process of law or guidelines for its observance, but also true general principles of law (the principle of effective recourse to a competent, independent and impartial judge or tribunal, the principle of presumption of innocence) that serve as the compass and guide of due process of law. Among these principles are the afore-mentioned judicial guarantees provided for in articles 7(6) and 25(1) of the American Convention. My approach to the relationship between articles 8 and 25 of the American Convention is, therefore, to view them as an aggregate rather than separately, and thus maximize protection of the rights upheld in the Convention. I therefore concur with the Court’s finding that Article 8(1) of the American Convention was violated in the instant case; regrettably, however, I do not concur with the reasoning that the Court followed to conclude that paragraph 2 of Article 8 of the Convention was not violated in the case of the “Juvenile Reeducation Institute”.
19. Both in the application it filed with the Court (May 20, 2002) and in its brief of final pleadings (July 5, 2004), the Inter-American Commission on Human Rights maintained that in the instant case, the "convicted and accused inmates were never separated” at the "Panchito López" Center and "the accused were treated as if they had been convicted of a crime,” which implied a violation of the principle of presumption of innocence protected under Article 8(2) of the American Convention.4 The Commission added that the vast majority of the inmates were without legal representation and “almost the entire inmate population” was in preventive detention.5 And, as the Commission pointed out in its application, “[e]ven the State acknowledged this fact in the reports it filed with the Commission.” 6 20. In my opinion, the points made by the Inter-American Commission in this regard, both in its application and in its brief of final pleadings (supra) –points that the State did not contest either in its briefs7 or at the public hearing held by the Court- were proven beyond any reasonable doubt. There was a clear violation of the principle of presumption of innocence, to the detriment of almost all the inmates at the "Panchito López" Center. To expect or demand additional information from the petitioners8 is, as I see it, to saddle the victims with too heavy a burden of proof. In circumstances such as those established in the instant case (children deprived of their liberty and living under the constant threat of danger), as the representatives of the victims and of their next of kin (Ms. Viviana Krsticevic and Ms. María Clara Galvis) pointed out in the public hearing held by the Court (May 3-5, 2004), the burden of proof is reversed and must be borne by the respondent.
21. At that public hearing, the State’s representation denied the existence of a (deliberate) pattern of violations and insisted that the principle onus probandi incumbit actori must apply; at the same time, however, he reiterated –in very unambiguous language and with dignity- his acknowledgement of the problems in the prison system and his concern for the situation of the adolescents at the "Panchito López" Center. At no time did the State’s representation obstruct the proceedings before the Court. To the contrary, at the public hearing in question he again acknowledged the facts in the complaint, which included “the high percentage of inmates awaiting or standing trial but not yet convicted.” His posture was very helpful in establishing the facts in the cas d'espèce.9 22. In the present judgment, the Inter-American Court itself accepts as proven fact that “the vast majority” of the inmates at the Panchito López Center were “awaiting or standing trial, but had not yet been convicted” and that those awaiting or standing trial “were not separated from the inmates who had been convicted” (paragraphs 134.19 and 20). It was up to the Court, then, to extrapolate the consequences of its own finding on the facts. That being the case, I fail to understand why a violation of both Article 8(1) and Article 8(2)(c) and (e) was not found. The finding that, in my view, the Court should have arrived at in the section on the merits, should have carried over into the section on reparations where, for reparations purposes, a distinction should have been made between the accused and those already convicted. In the instant case, there seems to be no doubt at all that the principle of the presumption of innocence protected under Article 8(2) of the Convention has been violated.
23. The broad scope of due process of law, as I perceive it, where Article 8(1) and (2) tie in with articles 25(1) and 7(6) of the American Convention, is in large part the result of the fundamental role and added importance that I attribute to general principles of law (cf. supra). My preference would have been to have this Judgment of the Court deal with judicial guarantees and judicial protection (articles 8 and 25 of the Convention) jointly –not separately, as was done. Both in its application and its brief of final pleadings, the Inter-American Commission made a very good case for this approach.
24. In exercising its contentious jurisdiction, the Inter-American Court has in fact linked articles 8 and 25 time and time again. It did so in its judgments in the cases of the “Street Children” (1999, paragraphs 219-228 and 235-237), Durand and Ugarte vs. Peru (2000, paragraphs 128-130), Bámaca Velásquez vs. Guatemala (2000, paragraphs 187-191), the Constitutional Court (pertaining to Peru, 2001, paragraphs 68-71 and 89-90), Baena Ricardo et al. vs. Panama (2001, paragraphs 124-129 and 137), Las Palmeras (concerning Colombia, 2001, paragraphs 58-60), Maritza Urrutia vs. Guatemala (2003, paragraphs 116-121), Juan Humberto Sánchez vs. Honduras (2003, paragraphs 120-121 and 124), and the 19 Merchants vs. Colombia (2004, paragraphs 187 and 192-194).
25. Thus, the approach that I am advocating here, which links judicial guarantees and judicial protection (articles 8 and 25 of the Convention), is entirely consistent with the jurisprudence constante of the Inter-American Court both in contentious and advisory matters (cf. supra), and also affords a heightened degree of protection to those who need it. The abundant jurisprudence of the European Court of Human Rights under Article 6 of the European Convention on Human Rights has recognized that the provisions of that article are true general principles of law, specifically that every person has the right to bring his case to an impartial and competent authority (which by extension means that justice cannot be denied) and to the principle of presumption of innocence.
26. All this points up the prominent role reserved for due process of law in the rule of law (État de Droit) in a democratic society. Hence, a narrow interpretation of due process would never be justified. The Inter-American Court has always accorded broad scope to Article 8 of the American Convention. This was particularly true, for example, in the case of Baena Ricardo et al. vs. Panama (Judgment of February 2, 2001, paragraphs 124-127), where the Court observes that, ultimately, justice done through due process of law, as a “legally protected true value,” must be ensured (para. 129). As I see it, the broad scope of due process of law follows from its close relationship to the right to effective recourse (lato sensu) to a competent court or tribunal.
27. The latter concept is expressed in Article 25 of the American Convention. In my Dissenting Opinion in Genie Lacayo vs. Nicaragua (Application for judicial review of the Judgment of January 29, 1997. Order of the Court of September 13, 1997), I underscored the sense and scope of Article 25 of the American Convention in the following terms:
The right to a simple, prompt and effective remedy before the competent national judges or tribunals, enshrined in Article 25 of the Convention, is a fundamental judicial guarantee far more important than one may prima facie assume,10 and which can never be minimized. It constitutes, ultimately, one of the basic pillars not only of the American Convention on Human Rights, but of the rule of law (État de Droit) itself in a democratic society (in the sense of the Convention). Its correct application has the sense of improving the administration of justice at national level, with the legislative changes necessary to the attainment of that purpose.
The origin - little-known - of that judicial guarantee is Latin American: from its insertion originally in the American Declaration of the Rights and Duties of Man (of April 1948),11 it was transplanted to the Universal Declaration of Human Rights (of December 1948), and from there to the European and American Conventions on Human Rights (Articles 13 and 25, respectively), as well as to the United Nations Covenant on Civil and Political Rights (Article 2(3)). Under the European Convention on Human Rights, in particular, it has generated a considerable case-law,12 apart from a dense doctrinal debate. (paragraphs 18-19).
28. The Inter-American Court has recognized the importance of the right to effective recourse to a competent court or tribunal; from the time of its Judgment in Castillo Páez vs. Peru (November 3, 1997) (paragraph 82) to the present, the Court has repeatedly held that every individual’s right to a simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights(Article 25 of the Convention) "is one of the basic pillars, not only of the American Convention but also of the rule of law itself in a democratic society, within the meaning of the Convention."13 In the instant case, the Court has quite correctly established a violation of Article 25 of the Convention (paragraph 251). 29. In my judgment, due process requires recourse to a competent court or tribunal (stricto sensu), just as the realization of justice (access to a competent court lato sensu) requires due process. The right to avail oneself of the courts –the right of recourse to the law- only materializes through observance of due process of law and of the basic principles that comprise due process. It is faithful observance of these principles that leads to the realization of justice, i.e., to everyone’s right of recourse to the courts in its fullest sense. Hence the ineluctable and intimate interrelationship between articles 8 and 25 of the American Convention affords the maximum protection of the individual’s inherent human rights.