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IV. Due process of law in JUDICIAL PROCEEDINGS concerning social rights
177. The case law of the IASHR has recognized a close link between the scope of the rights embodied in Articles 8 and 25 of the American Convention. Accordingly, it has been determined that states have the obligation not only to design and adopt into law effective remedies for the comprehensive protection of human rights, but also to ensure proper implementation of said remedies by the courts. Concretely, the Inter-American Court has reiterated on numerous occasions that “remedies that must be substantiated in accordance with the rules of due process of law.”[124] A third aspect encompassed by the right of access to justice in the area of economic, social and cultural rights is that of clear principles on due process of law in judicial proceedings, when the assurance of these rights is at stake.
178. Since there is a direct connection between the suitability of a judicial mechanism and the protection of economic, social and cultural rights, one way to ensure the enforceability of these rights is to establish a reasonable time in proceedings concerning social rights, effective equality of arms in proceedings, and proper judicial review of administrative decisions.
179. There are several precedents in the case law of both the IACHR and the Inter-American Court regarding the applicability of such judicial guarantees in cases involving social rights. Thus, the IASHR has recognized that setting clear principles in this area helps to steer judicial reform toward the enhancement of judicial guarantees of social rights and their observance.
A. Due Process of Law as a Gurantee of the Right of Access of Justice
180. In keeping with the provisions of Article 8(1) of the American Convention, the IASHR has established numerous precedents underscoring the applicability of the right to a fair trial in any proceeding to determine the substance and scope of human rights, regardless of the subject matter concerned. By way of an example, it is appropriate again to cite here the Second Progress Report of the Special Rapporteurship on Migrant Workers and Their Families in the Hemisphere in which the IACHR stated the following:[125]
Articles 8 and 25 of the American Convention on Human Rights are those traditionally cited in relation to the developing doctrine concerning judicial guarantees and protection. These two articles cover any situation in which it becomes necessary to determine the content and scope of the rights of a person under the jurisdiction of a state party, be it in a criminal, administrative, tax, labor, family, contractual or any other kind of matter.[126] (Emphasis added)
181. Echoing the foregoing, in its Report on Terrorism and Human Rights the IACHR mentioned that the requirements of a fair trial and due process of law are not limited to criminal proceedings;[127] they are also applicable to non-criminal proceedings for the determination of a person’s rights and obligations of a civil, labor, fiscal or any other nature.[128]
182. The Inter-American Court, for its part, has also been clear on this point. In Advisory Opinion OC-18/03, "Juridical Condition and Rights of the Undocumented Migrants," the Court held that:
The broad scope of the preservation of due process applies not only ratione materiae but also ratione personae, without any discrimination. […] As this Court has already indicated, due legal process refers to […] all the requirement that must be observed in the procedural stages in order for an individual to be able to defend his rights adequately vis-à-vis any [...] act of the State that could affect them. That it to say, due process of law must be respected in any act or omission on the part of the State bodies in a proceeding, whether of an administrative, punitive or jurisdictional nature. […] Likewise, the Court has observed that the list of minimum guarantees of due legal process applies when determining rights and obligations of “civil, labor, fiscal or any other nature.” This shows that due process affects all these areas and not only criminal matters.[129]
183. The reasoned concurring opinion of Judge Sergio García Ramírez in the aforesaid advisory opinion illustrates with even greater clarity the margins of application of the right to legal due process and. At the same time, he posits that an important link exists between effective access to justice and the right enshrined in Article 8(1) of the American Convention. Thus, on that occasion the Judge held that:
Announcing rights without providing guarantees to enforce them is useless. It becomes a sterile formulation that sows expectations and produces frustrations. Therefore, guarantees must be established that permit: demanding that rights should be recognized, claiming them when they have been disregarded, re-establishing them when they have been violated, and implementing them when their exercise has encountered unjustified obstacles. This is what the principle of equal and rapid access to justice means; namely, the real possibility of access to justice through the means that domestic law provides to all persons, in order to reach a just settlement of a dispute; in other words, formal and genuine access to justice. […]This access is facilitated by due process, which the Inter-American Court of Human Rights has examined fully in the exercise of its advisory and contentious competence. Strictly speaking, due process is the means to ensure the effective exercise of human rights that is consistent with the most advanced concept of such rights: a method or factor to ensure the effectiveness of law as a whole and of subjective rights in specific cases. Due process – a dynamic concept guided and developed under a guarantee model that serves individual and social interests and rights, and also the supreme interest of justice – is a guiding principle for the proper resolution of legal actions and a fundamental right of all persons. It is applied to settle disputes of any nature – including labor disputes – and to the claims and complaints submitted to any authority: judicial or administrative.[130]
184. Having established the framework for the observance of due process guarantees, it is appropriate to proceed with an individual examination of the elements that the IACHR and the Court have identified as fundamental components of those guarantees in cases involving economic, social and cultural rights.
B. Elements that Comprise Due Process of Law in Judicial Proceedings
1. The Principle of Equality of Arms
185. In a proceeding, the unequal economic or social status of the litigants frequently has the effect of rendering the possibility of defense unequal at trial. Procedural inequality can also arise in social-rights litigation with the State, like an unwelcome reminder of the traditional positions in administrative law under which the State usually enjoys advantages vis-à-vis those under its administration. Accordingly, the principle of equality of arms should be recognized as one of the integral elements of the guarantee of a fair trial.
186. In an action involving social rights, safeguarding this principle is, without question, an important aspect of any defense strategy. The IASHR has identified the principle of equality of arms as an integral part of due process of law and has begun to outline standards with a view to its observance and assurance.[131] 187. In this connection, in Advisory Opinion OC-16/99 The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law,[132] the Inter-American Court makes its position clear on the principle under discussion here:
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. It is important to recall that the judicial process is a means to ensure, insofar as possible, an equitable resolution of a difference. The body of procedures, of diverse character and generally grouped under the heading of the due process, is all calculated to serve that end. […]To accomplish its objectives, the judicial process must recognize and correct any real disadvantages that those brought before the bar might have, thus observing the principle of equality before the law and the courts and the corollary principle prohibiting discrimination.[133] (Emphasis added)
188. Having recognized the significance of this principle, the Court posits that the presence of real disadvantages necessitates that the State adopt countervailing measures that help to reduce or eliminate the obstacles and deficiencies that impair or diminish an effective defense of one’s interests. The foregoing is based on the fact that, absent those countervailing measures, widely recognized in various stages of the proceeding, "one could hardly say that those who have the disadvantages enjoy a true opportunity for justice and the benefit of the due process of law equal to those who do not have those disadvantages."[134] Thus, we find that the principle that concerns us here is characterized as an integral part of the set of procedural guarantees that combine to comprise the right to a fair trial and to guarantee the right of effective access to justice.
189. The IACHR has also referred to the principle of equality of arms and underscored its importance with respect to observance of the right to a fair trial. In its "Report on Terrorism and Human Rights,"[135] the Inter-American Commission noted that there may be occasions in which, owing to the particular circumstances of a case, guarantees additional to those explicitly prescribed in the pertinent human rights instruments are necessary to ensure a fair hearing. In the opinion of the IACHR:
This stipulation is drawn in part from the very nature and functions of procedural protections, which must in all instances be governed by the principle of fairness and which in their essence must be designed to protect, to ensure, or to assert the entitlement to a right or the exercise thereof. This includes recognizing and correcting any real disadvantages that persons concerned in the proceedings might have and thereby observing the principle of equality before the law and the corollary principle prohibiting discrimination of any kind.”[136]
2. The Scope of Judicial Review of Administrative Decisions
190. As was mentioned in section III of this report, the right to judicial review of administrative decisions is another of the protections afforded by the guarantee of a fair trial that is closely connected with the protection of economic, social and cultural rights. This review has already covered the recognition of this right as an integral part of due process of law.[137] Accordingly, it would be relevant to examine the scope that said judicial review should guarantee in the light of the standards sketched out by the IACHR and the Inter-American Court in this area.[138]
191. One precedent that should be mentioned in this connection is the Baena Ricardo et al. Case.[139] As noted in the third section of this report, this case constituted a milestone in the case law of the IASHR for several reasons. Having already drawn attention to the significance of the case with respect to observance of due process of law in administrative proceedings, it is appropriate to mention here the standards regarding the scope of judicial review that the Inter-American Court developed in its respective judgment.
192. In this case the petitioners were 270 government employees, who were dismissed from their positions in breach of the rules that governed the termination procedures of the state entities where they worked. As a result, the workers pursued various remedies in the courts to reverse the administrative decisions that ordered their termination. The Court found that, upon deciding the actions brought by the workers, the Panamanian courts omitted to perform an extensive review of the decisions adopted at the administrative level.[140] In particular, the Inter-American Court found that:
Since Law 25 was considered constitutional and it derogated the rules in force at the time of the events, from its having a retroactive effect, the workers had to bring administrative conflicts actions before the Third Section of the Supreme Court. During these proceedings, the workers did not have broad possibilities to be heard in the search for clarification of the events. In order to determine that the dismissals were legal, the Third Section based itself exclusively on the fact that it had been declared that Law 25 was not unconstitutional and that the workers had participated in the work stoppage contrary to democracy and the constitutional order. Nor did the Third Section analyze the real circumstances of the cases or whether or not the dismissed workers had committed the acts for which they were being punished. Thus, it did not take into consideration the reports on which the directors of the different institutions based themselves to determine the participation of the workers in the work stoppage, such reports not being even accounted for, according to the evidence submitted, in the internal records. In handing down a judgment on the basis of Law 25, the Third Section did not take into consideration that such Law did not establish which actions attempted against democracy and the constitutional order. […] The attitude of the Third Section is still more serious when taking into consideration that it was not possible to appeal its decisions, by virtue of the fact that its judgments were final and unappealable.[141] (Emphasis Added)
193. Accordingly, the Inter-American Court concluded that the courts did not observe the due process of law, or the right to an effective recourse and, therefore, "the recourses attempted were not appropriate to solve the problem of the dismissal of the workers."[142]
194. For its part, the IACHR has echoed the need to ensure judicial review of administrative decisions and has outlined certain guidelines in this area. Thus, in the aforementioned "Report on Terrorism and Human Rights,"[143] the Inter-American Commission said that “[j]udges should maintain at least baseline oversight of the legality and reasonableness of administrative law decisions in order to comply with the guarantees provided for in Articles XVIII and XXIV of the American Declaration and Articles 1(1) and 25 of the American Convention.”[144]
3. The Right to a Reasoned Decision on the Merits of a Matter
195. The IASHR has also established a position on the extent and scope of judicial decisions. Thus, it has referred to the right to a reasoned decision in judicial proceedings that reflects an analysis of the merits of a particular matter.
196. One precedent that reveals the this particular elements to be an integral part of the rights to a fair trial and judicial protection can be found in the Mayagna (Sumo) Awas Tingni Community Case.[145]
197. In its arguments to the Inter-American Court in this case, the IACHR indicated a violation of the right to effective judicial protection arising from the lack of a reasoned decision on merits in the action for constitutional relief (amparo) brought to prevent the State from allowing the foreign company SOLCARSA to destroy and exploit the land that had belonged to the Awas Tingni Community for years. In particular, the IACHR established the following standard:
[T]he applicants resorted to the jurisdictional body established by law to seek legal remedy to protect them from acts which violated their Constitutional rights. The jurisdictional body must give reasons to support its conclusions, and it must decide on the admissibility or inadmissibility of the legal claim which originates the judicial remedy, after a procedure in which evidence is tendered and there is debate on the allegation. The legal remedy was ineffective, since it did not recognize the violation of rights, it did not protect the applicants in the rights affected, nor did it provide adequate reparation. The court avoided a decision on the rights of the applicants and hindered their exercise of the right to legal remedy pursuant to Article 25 of the Convention.[146] (Emphasis added)
198. In second place, it is worth mentioning again another important case involving indigenous peoples' rights, namely the Yakye Axa Case.[147] In addition to mentioning the violations that occurred in the administrative proceedings which the community instituted to claim its ancestral territories, the IACHR, in its application to the Court, also argued that there had been a violation of the rights to a fair trial and to judicial protection as a result of the lack of any analysis of merits in the judicial remedies attempted by the Community. The IACHR noted that,
The different resolutions handed down rejected the amparo action on procedural grounds, claiming that the remedy was not lodged within a period of 60 days following discovery of the clearly illegitimate act, omission, or threat. […] The action initiated by the petitioners through the amparo remedy did not bear fruit because of merely procedural considerations, with no ruling being given on the merits of the case. The courts thus ignored an ongoing situation of fact: namely, the denial of the Community’s access to its traditional, subsistence activities, even though Paraguayan law specifically recognizes them that right, even over areas that they do not occupy on an exclusive basis. […]The Supreme Court’s decision undermined the Yakye Axa Community’s right to pursue their traditional and subsistence activities in their own habitat, thereby condemning them to slow starvation”[148] (Emphasis added)
199. Accordingly, the IACHR requested that the Court find the State of Paraguay responsible for violating the right to a fair trial and to effective judicial protection set forth in Articles 8 and 25 of the American Convention, by “failing to provide the Indigenous Community and its members with an effective and efficient remedy for resolving the Yakye Axa Community’s claim to its ancestral territory and thus preventing it from receiving a hearing with all due guarantees.”[149]
200. In turn, the Inter-American Court gave particular attention to the right to a fair trial in its analysis in the Case of Claude Reyes et al.[150] Thus, it examined the conduct of the Chilean courts in judicial proceedings brought in an attempt to order the Foreign Investment Committee of Chile to respond to Mr. Reyes’ request for information regarding a forestry exploitation project with potential environmental impact and that it release said information to him within a reasonable time.[151]
201. In this framework, the Court set an important standard in this area. It found that all State bodies which exercise functions of a substantially jurisdictional nature have “the obligation to adopt just decisions based on full respect for the guarantee of due process established in Article 8 of the American Convention,”[152] and “that the effective recourse mentioned in Article 25 of the American Convention must be processed in accordance with the rules of due process established in Article 8(1) thereof, in keeping with the general obligation of the States to guarantee the free and full exercise of the rights established in the American Convention to all persons subject to their jurisdiction (Article 1(1)).”[153] The Court analyzed the decisions of the Santiago Court of Appeal in light of these parameters and concluded that,
[T]he application for protection of rights filed before the Santiago Court of Appeal should have been processed respecting the guarantees embodied in Article 8(1) of the Convention. […] the Santiago Court of Appeal failed to decide on the dispute resulting from the action of the Vice President of the Foreign Investment Committee by ruling on the existence of the right of access to the requested information in this specific case, since the judicial decision was to declare that the filed application for protection was inadmissible. […] [T]he Court finds that this judicial decision lacked sufficient justification.[154] (Emphasis added)
202. Further to the foregoing, the Inter-American Court found that the Santiago Court of Appeal “did not make even the least reference to the reasons why it was “evident” from the ‘facts’ and ‘background information’ in the application that it was ‘clearly without grounds.’ Moreover, it did not asses whether the action of the administrative authority, by not providing part of the requested information, related to any of the guarantees that can be the object of the application for protection, or whether any other recourse before the regular courts would be admissible.”[155] The Court concluded that, in this case, Chile failed to guarantee an effective judicial recourse that was decided in accordance with Article 8(1) of the American Convention and which resulted in a ruling on the merits of the dispute concerning the request for State-held information; in other words, a ruling on whether the Foreign Investment Committee should have provided access to the information requested.[156]
4. Trial within a Reasonable Time
203. Finally, mention should be made of a component of the right to a fair trial that is widely recognized in the framework of the IASHR: the right to a trial within a reasonable time.[157]
204. One precedent that demonstrates the link between the right to a trial within a reasonable time and the observance of economic, social and cultural rights is the Case of Milton García Fajardo et al.,[158] which shall be reexamined in detail in the following section. As regards the relevance of this case for our purposes in this instance, in its report on merits the IACHR referred to the way in which the Supreme Court of Nicaragua had acted and considered that to have taken a year to decide the amparo petition brought by the dismissed workers constituted a violation of Article 8 of the American Convention. The IACHR drew special attention to the importance that proceedings be conducted within a reasonable time, in order to ensure effective protection for the social rights at issue in the case. Thus, the IACHR noted,
Article 8 of the American Convention mentions the judicial guarantees whose compliance is required in all proceedings for determination of rights and obligations. Clause 1 provides that compliance is obligatory within a reasonable time established in order to avoid unnecessary delays that may lead to a deprivation or denial of justice. […]Under Nicaraguan law, the Supreme Court was required to issue a decision on the petition for amparo within 45 days. […] However, it took a year to do so, which demonstrates clear negligence on its part, in breach of Article 8 of the Pact of San José. Regarding this, the Supreme Court failed to comply not only with this procedural deadline prescribed by domestic law, but also with international standards developed for determining a reasonable time, by issuing a ruling that was vital to the job and financial security of a large number of workers and to the effectiveness of other human rights long after the respective petition in question was filed.[159] (Emphasis added)
205. Next, the IACHR referred to the case law that the Inter-American Court has taken into account in determining a reasonable time in a proceeding. Accordingly, the IACHR identified the three aspects to be examined: “a) the complexity of the matter; b) the judicial activity of the interested party; and c) the behavior of the judicial authorities,”[160] and it proceeded to assess their observance in this case. Thus, the IACHR found:
With respect to the complexity of the matter, the Commission finds that the petition for amparo sought purely to obtain a ruling from the Supreme Court on a point of law: the supremacy of the Constitution over the inferior law insofar as the right to strike is concerned. The IACHR has noted that the judicial procedure followed in the case of this petition did not involve numerous steps or requests; on the contrary, the process was very straightforward, given that it consisted of presentation of the petition for amparo, followed by the procedure conducted before the Court of Appeals; the presentation of the opinion of the Office of the State’s Attorney for Civil and Labor Matters; and the reply of the Director General of Labor. Accordingly, a large number of measures were not required, in view of the nature of the petition and the little activity with respect to discovery. […]As to the judicial activity of the interested party, the petitioners filed a petition for amparo and always presented additional information whenever it was necessary. Both they and the government authorities against whom the petition was filed met the deadlines and terms provided for presentation of their respective arguments. However, as a result of the delay of the Supreme Court of Justice in rendering a judgment, the petitioners repeatedly requested that it issue a decision. The Commission finds that the delay in rendering a judgment was not due either to negligence or lack of interest of the parties but, rather, to the inactivity and failure to meet deadlines of the Supreme Court of Justice itself.[161]
206. Having conducted this analysis, the Inter-American Commission concluded that there was no justification whatsoever why this Tribunal should have taken longer than the statutory time limit to deliver a ruling on a petition for amparo, which, by its very nature, entailed a prompt procedure. Accordingly, it considered that what had occurred was a “straightforward lack of activity by the court, which left the customs employees in a situation of legal defenselessness during a year and constituted a violation of Article 8(1) of the American Convention.”[162] Therefore, the IACHR found that the delay of the Supreme Court of Justice of Nicaragua in pronouncing judgment on the petition for amparo also indicated the ineffectiveness of the courts in protecting the human rights enshrined in the American Convention.
207. The IACHR set another important standard regarding the right to a trial within a reasonable time in its admissibility report in the Case of Tomás Enrique Carvallo.[163] The petitioner had filed an action before the courts seeking a rendering of accounts and damages for the alleged confiscation of a bank that he owned by the Central Bank of Argentina. According to the petitioner, there was an unwarranted delay in rendering a final decision. The action had been brought in late 1986 and by 2001, the year in which the IACHR adopted the report, no decision had yet been reached. For the majority of this time the case remained at the discovery stage. In this framework, the IACHR noted that the case was admissible inasmuch as “While civil litigation necessarily has its own requirements: ‘The rule of prior exhaustion must never lead to a halt or delay that would render international action in support of the defenseless [alleged] victim ineffective.’ In this sense, the proceedings must be considered as a whole, with reference to the complexity of the case and the conduct of the complainant and the competent authorities.”[164] In keeping with the foregoing, the IACHR found that although the State had argued that the case file was replete with documents showing action in the case, “it is not the quantity but the efficacy of that action which is at issue.”[165] In this way, it established an important standard for determining a reasonable time in proceedings.
208. Finally, the IACHR found the fact that the initial stage of the proceedings had lasted 15 years to be grounds to conclude that the exception provided in Article 46(2) of the American Convention concerning undue delay was applicable and it declared the case admissible.
209. In October 2002, the IACHR issued another opinion on a petition involving labor rights and the right to a trial within a reasonable time when it examined the Case of Finca La Exacta.[166] In that case, the organized workers of Finca La Exacta submitted a petition to institute proceedings in connection with a collective labor dispute, with a view to presenting their claims concerning working conditions to the Guatemalan courts. Under the Guatemalan Labor Code, such a petition may be submitted when a dispute that may lead to a strike arises at a workplace. According to the Labor Code of Guatemala, once a petition of this type if submitted, the competent judge for the case is required to convene a conciliation tribunal within 12 hours. The resulting conciliation procedure may not last more than 15 days. If no agreement is reached, the workers may request the court’s permission to begin a strike. In this particular case the courts never issued a decision on the workers’ petition.
210. The Commission concluded that the Government of Guatemala had violated Articles 8 and 25 of the American Convention with respect to the labor claims brought by the workers of Finca La Exacta before the Guatemalan courts. Consequently, in the opinion of the IACHR, "the organized workers who sought to obtain access to the courts for the determination of their rights and obligations as workers vis-à-vis the owners and administrators of Finca La Exacta were denied the possibility of a hearing within a reasonable time period, in violation of Article 8 of the Convention."[167] The IACHR found that the dismissed workers “were not given an opportunity to be heard nor were they given access to a prompt and effective remedy against the violations of the law that adversely affected their right to work and their right to freedom of association,[168] which are recognized both in the Guatemalan Constitution and in the American Convention.”[169]
211. At the same time, the IACHR made it clear that the denial of justice to the workers in this case was not an isolated incident but a systematic practice of the labor courts in Guatemala. In this connection, the IACHR noted,
The Commission has indicated above that the labor courts of Guatemala are not in a position to provide judicial protection in labor matters. […] The Guatemalan authorities have also admitted that this case is part of a general tendency for the Guatemalan courts to fail to provide protection in labor-related matters.[170]
212. In the Case of the Maya Indigenous Communities of the Toledo District,[171] which will be examined in detail in the following section of this report, the IACHR also considered that the unreasonable length of the judicial proceedings was framed by a "systemic delay inherent in the civil justice system generally."[172]
213. Briefly, it should be mentioned here that the judicial proceedings instituted by the community in question sought a court order declaring the existence and nature of Maya interests in their ancestral lands and the status of those interests as rights protected under the Constitution, as well as declarations of violations of those rights by the Government because of logging concessions granted on Maya traditional lands.
214. In keeping with the above-cited precedents, in its report the IACHR posited, "The jurisprudence of the inter-American system has also established that an essential element of effectiveness is timeliness. The right to judicial protection requires that courts adjudicate and decide cases expeditiously, particularly in urgent cases. The Commission has emphasized in this regard that there is no question but that the duty to conduct a proceeding expeditiously and swiftly is a duty of the organs entrusted with the administration of justice."[173] The IACHR again underscored the criteria to be taken into consideration in making a determination as to reasonable time in a proceeding. Thus, it noted that "it is well-established that three factors are to be taken into account in determining the reasonable time within which a judicial proceeding must be conducted: (a) the complexity of the case; (b) the procedural activity of the interested party; and (c) the conduct of the judicial authorities."[174] Under these guidelines, the IACHR stated,
The Commission notes in this regard that, as of the date of this report, almost 8 years have passed since the motion for constitutional relief was initiated, and over 5 years have transpired since the motion for emergency interlocutory relief was lodged. Despite this considerable delay, no decision has been forthcoming in either proceeding. In evaluating these delays in light of the three factors cited above, the Commission acknowledges that the subject matter of the case raises complex matters of fact and law that may reasonably require some delay in litigating and deciding upon the issues. […] It is also apparent that the lack of progress in the proceeding has also resulted from the State’s failure to comply with certain procedural requirements established by the Court, with the result that the proceedings have not advanced beyond the initial stages of the filing of pleadings and evidence. Further, the State has admitted that progress in the case has been affected by systemic delay inherent in the civil justice system generally. In light of these circumstances, together with the lengthy period for which domestic proceedings have been outstanding, the Commission considered that unreasonable delay has been demonstrated in this case.[175]
215. Therefore, the Inter-American Commission found that there was an unwarranted delay in rendering judgment in the domestic proceedings commenced by the Maya people, and accordingly, that the State of Belize violated the right to judicial protection enshrined in Article XVIII of the American Declaration to the detriment of the Maya people.
216. It is also important to note here that the IASHR has begun to establish its position with regard to the moment from which the length of a proceeding might appropriately be calculated in order to determine its reasonableness. The Case of Menéndez, Caride et al.[176] afforded the Inter-American Commission an opportunity to state its position on this point.
217. In this case, the petitioners are retirees who filed claims with the Argentine National Social Security Administration (ANSES), with the aim of getting an adjustment to their retirement or pension payment or in its calculation (social security benefits). The victims said they had filed an administrative complaint with ANSES and that in response to the ensuing silence or decisions with which they disagreed, they filed an appeal before the corresponding court, demanding the readjustment or calculation, as appropriate, of their pension benefits. In several cases, a final decision remained pending on these remedies at the time the petition was lodged.
218. In other cases, a judgment favorable to them was rendered by the Chamber for Social Security (CSS), but then ANSES filed a special appeal with the Argentine Supreme Court, which had not issued a final decision at the time the petition was lodged. The petitioners also alleged violation of their rights to judicial guarantees and effective judicial protection by reason of the fact that Articles 5, 7, 16, 22 and 23 of Law 24.463 on Social Security Solidarity allow postponement of the enforcement of court judgments favorable to them on the basis of insufficient budgetary resources. The petitioners also maintain that the facts as outlined have led to the violation of other rights, including the rights to property, equality, health and well being, social security, life, and, in particular, the rights enshrined in Articles 8 and 25 of the American Convention, as a result of delays in securing final judgments determining the rights of the alleged victims; the adjustment or calculation of their social security income; postponement of enforcement of judgments, as well as inappropriate enforcement of same that resulted in confiscation of property and forced them to exhaust other resources in their attempts to secure what is owed to them.[177]
219. Accordingly, the IACHR declared the case admissible as regards alleged violation of rights provided in Articles 1(1), 2, 8(1), 21, 24 and 25(2)(c) of the American Convention. Furthermore, in its report, it noted the following:
The Commission agrees with the petitioners that when examining the exception to the rule on exhaustion of domestic remedies set out in Article 46(2)(c), the date to be used as a starting point should be the date the administrative complaint was lodged. According to the notion of an overall analysis of the procedure, a case on rights, be it civil or administrative in nature, may be examined in the first instance by a body that is not a court, as long as the case can be presented in a reasonable period of time before a court with competence to try it in regard to both facts and law. In this case the IACHR notes that the State has pointed to the fact that it was mandatory to lodge the complaint with the administrative body, both under the system in place before the 1995 reform of Law 24.463 and after. Once the administrative body has determined if payment is in order and, if so, how much is to be paid, the petitioners could contest the decision before the corresponding chambers, which without a doubt are courts in the sense set out in Article 8(1) of the Convention. Thus the Commission concludes that in this case the administrative stage of proceeding shall also be taken into account when calculating the time period.
220. Accordingly, the IACHR established an important standard with respect to the guarantee of a reasonable time by finding that the length of a trial and should be calculated from the filing of the administrative complaint and not from the start of the ensuing judicial stage.
221. It would be appropriate to conclude our examination of this point with a reference to the reasoned opinions of Judges Antonio Cançado Trindade and Sergio García Ramírez, in the Case of Acevedo Jaramillo et al.,[178] which marks an important precedent with respect to the enforcement of judgments on social rights. We shall return to this case in the following section; however, it is worth drawing attention to the comments of the two judges regarding the right to a trial in a reasonable time and its impact on the judgment enforcement stage.
222. Judge Cançado Trindade observed the following in his separate opinion:
It is my belief that judgment enforcement is part of the legal process —the due process of the law— and, hence, the States must ensure that said enforcement is carried out within a reasonable time. It would neither be beside the point to recall that, contrary to what traditional legal scholars specializing in procedural matters tend to think or assume, the procedure is not an end in itself, but a means to do justice. There is a big gap between formal and actual justice, the latter being the one I keep in mind at all times when reasoning out my arguments. Moreover, I contend that compliance with the judgment is part and parcel of the right to a fair trial (lato sensu), which is to be understood as the right to be furnished the full span of jurisdiction, wherein the faithful enforcement of the judgment is included […] The enforcement of judgments is, then, an essential element of the right to a fair trial itself, thus conceived in a broad sense, in which it expresses the relation between the right to a fair trial and the right to judicial protection under Articles 8 and 25, respectively, of the American Convention.[179]
223. The judge finds that enforcement of the judgment is also part of due process of law and that, therefore, states should ensure that said enforcement is completed within a reasonable time. Accordingly, the right of access to justice requires that final settlement of the dispute be accomplished within a reasonable time.[180]
224. It is also appropriate to mention here the opinion of Judge García Ramírez, in which he suggests that a possible fourth element for the determination of a reasonable time is the "actual infringement caused by the process on the individual’s rights and duties –that is, his judicial situation."[181] Elaborating on this concept, the judge notes,
It is possible that the latter could have little relevance in this situation; if this is not so, that is, if the relevance increases, up to intense, it would be necessary, for the sake of justice and security, both seriously threatened, that the process be more diligent so that the subject’s situation, which has begun to seriously affect his life, may be decided upon in a short time –’reasonable time.[182]
225. The IASHR has determined that states should design and adopt into law effective remedies for the protection of the rights of individuals and also ensure the proper implementation of said remedies by the courts. The organs of the IASHR have developed abundant case law on observance of the judicial guarantees in all proceedings in which the substance and scope of economic, social and cultural rights is at issue. Thus an important connection has been identified between the real possibility of access to justice and respect, protection, and assurance of the right to a fair trial in social-rights proceedings.
226. Both the Inter-American Court and the IACHR have begun to define the principles and rights that domestic courts needs must protect in order to comply with the mandate contained in Article 8(1) of the American Convention with regard to social rights.
227. Both organs have stressed the need that courts ensure observance of the principle of equality of arms. On this point, the Court has found that real inequality between the parties in a proceeding engages the duty of the State to adopt all the necessary measures to lessen any deficiencies that thwart effective protection of the rights at stake. The Commission has also expressed its opinion in this regard. Thus, it has noted that the particular circumstances of a case may determine that guarantees additional to those explicitly prescribed in the pertinent human rights instruments are necessary to ensure a fair hearing. For the IACHR this includes recognizing and correcting any real disadvantages that the parties in a proceeding might have, thereby observing the principle of equality before the law and the prohibition of discrimination.
228. Another of the elements of the rights to a fair trial that the IASHR has identified as important for the protection of economic, social and cultural rights, is the right to judicial review of administrative decisions and, in particular, the appropriate scope of such review. The IACHR has expressly stated that there should be at least a basic judicial supervision of the lawfulness and reasonableness of administrative decisions, in order to ascertain that they are compatible with the guarantees enshrined in the Convention.
229. The right to a reasoned decision on the merits of a matter has also been recognized by the IACHR and the Court as an integral element of due process of law in judicial proceedings. Thus, the Commission has found that after the stages in which the evidence and arguments are presented, the jurisdictional organs should provide a reasoned basis for their decisions and so determine the admissibility or not of the legal claim on which the complaint is founded. The Court, too, has established an important standard in this regard: it has held that states should also ensure that effective judicial remedies are decided in accordance with Article 8(1) of the American Convention, for which reason, the courts should adopt decisions that address the merits of suits brought before them.
230. The right to a trial within a reasonable time is another of the components of the guarantee of a fair trial in judicial proceedings that is particularly relevant as regards protection of social rights. The IACHR and the Inter-American Court have identified certain criteria for determining a reasonable time in a proceeding. These are: a) the complexity of the matter; b) the judicial activity of the interested party; and c) the behavior of the judicial authorities.
231. In various precedents dealing with economic, social and cultural rights, the Commission has emphasized the need to ensure expedition in proceedings on petitions for constitutional relief (amparo). The IACHR has determined that timeliness is critical to the effectiveness of a remedy and that the right to judicial protection requires that courts act with due dispatch in issuing opinions and decisions, particularly in urgent cases. Accordingly, the Commission has stated that the organs responsible for dispensing justice unquestionably have the obligation to conduct proceedings quickly and promptly.
232. In this way, the IACHR has pointed out that the main criteria in making a determination as to reasonable time in proceedings is not the quantity of actions, but their efficacy.
233. In regard to this right, it should also be mentioned that the IACHR has found that the length of a trial should be counted from the start of the administrative proceedings, not when the case reaches the judicial stage. While it cannot be said that a definitive standard yet exists on this issue, the case law of the IACHR denotes that the IASHR has begun to adopt a position in this respect.
234. Finally, it should be noted that the organs of the IASHR have begun to indicate that judgment enforcement should also be considered an integral part of the proceeding and that, consequently, should also be taken into account in examining if the length of a trial is reasonable. The reason for the foregoing is that the right of access to justice requires that all disputes be settled within a reasonable time.
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NEXT] [124] Cf. I/A Court H.R., Cases of Velásquez Rodríguez, Fairén Garbi and Solís Corrales, and Godínez Cruz. Preliminary Objections. Judgments of June 26, 1987. Series C Nos. 1, 2, and 3, paras. 90, 90, 92, respectively; I/A Court H.R., Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 American Convention on Human Rights). Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 24. [125] Cf. Second Progress Report of the Special Rapporteurship on Migrant Workers and Their Families in the Hemisphere, cit. [126] Cf. Second Progress Report of the Special Rapporteurship on Migrant Workers and Their Families in the Hemisphere, cit., para. 90. [127] Cf. Report on Terrorism and Human Rights, cit. [128]Cf. Report on Terrorism and Human Rights, cit, para. 240. [129] Cf. Advisory Opinion OC-18/03, cit., paras. 122, 123, 124. [130] Cf. Reasoned Concurring Opinion of Judge Sergio García Ramírez in Relation to Advisory Opinion OC-18/03, Juridical Condition and Rights of the Undocumented Migrants. September 17, 2003. Series A No. 18, paras. 36 and 37. [131] The case law of the European Court of Human Rights also regards the principle of equality of arms as part of the guarantee of a fair trial and has reiterated with respect to the adversarial nature of civil procedure, that it requires a just balance between the parties, even when one of the parties is the State. Thus, the European Court has ruled that “[e]very party to a case must be afforded a reasonable opportunity to present his or her case under conditions that do not place the party at a substantial disadvantage vis-à-vis the opponent.” See in this respect, ECHR, Kaufman v. Belgium, N° 5362/72, 42 CD 145 (1972) and Bendenoun v. France, A 284, para. 52 (1994). Accordingly, the ECHR considers this principle to include the idea of “a just balance” between the parties. Thus, the ECHR has said that the principle of equality of arms equates to the right to present the case to a court in equal conditions. In this way, in Foucher v. France, French justice denied a private citizen access to criminal files the and also refused to release copies of the documents in them. Consequently, the Court of Appeals in the case only based its conviction on official reports. In light of this situation, the European Court of Human Rights found that: “[a]ccording to the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case in conditions that do not place him at a disadvantage vis-à-vis his opponent.” Cf. ECHR, Foucher v. France, Judgement of March 18, 1997, para. 34. The ECHR also considered that the possibility to present and answer arguments must be equal for both parties in a dispute. Thus, in Ruiz Mateos v. Spain, in which the applicants sought restitution of property expropriated by the Spanish State, the counsel for the State, an adversary in the civil proceeding, had the opportunity to present to the Constitutional Court of Spain written observations regarding the compatibility of law 7/1983 and Article 24.1 of the Spanish Constitution, whereas the applicants were not afforded the opportunity to do so. With respect to the latter the Constitutional Court only considered the arguments contained in the original complaint. In light of these circumstances, the ECHR found that “the principle of equality of arms is only one feature of the wider concept of a fair trial, which also includes the fundamental right that proceedings should be adversarial.” The Court went on to add that, “within the context of proceedings on a civil right to which persons belonging to that circle are a party, those persons must as a rule be guaranteed free access to the observations of the other participants in these proceedings and a genuine opportunity to comment on those observations.” Cf. ECHR, Ruiz Mateos v. Spain, Judgement of 23 June 1993, paras. 15, 61, 63 and 65. In other cases, the ECHR upheld the right of persons to challenge the decisions of public agencies that, in one way or another, were under the supervision of the State, which was at the same time a party in an adversarial proceeding. Thus, in the Bönisch case, the applicant was convicted because his products contained more than the maximum quantity permissible or hazardous substances. The Federal Food Control Institute filed suit against Mr. Bönisch and its director was called as an expert. According to the Court, the expert acts as a witness against the accused and, in consequence, the principle of equality of arms requires equal treatment in the hearing of his testimony and the testimony offered by the persons called by the defense. That equal treatment was not present in this case because the expert played a dominant role. The ECHR stated that, “In principle, his being examined at the hearings was not precluded by the Convention, but the principle of equality of arms inherent in the concept of a fair trial and exemplified in paragraph 3 (d) of Article 6 (art. 6-3-d) required equal treatment as between the hearing of the Director and the hearing of persons who were or could be called, in whatever capacity, by the defence”. The ECHR added, “The Court considers, as did the Commission, that such equal treatment had not been afforded in the two proceedings in issue. In the first place, the Director of the Institute had been appointed as “expert” [and, therefore,] formally invested with the function of neutral and impartial auxiliary of the court. In addition, various circumstances illustrate the dominant role that the Director was enabled to play. In his capacity of “expert”, he could attend throughout the hearings, put questions to the accused and to witnesses with the leave of the court and comment on their evidence at the appropriate moment (see paragraph 21 above). As a mere witness, [the expert called by the defence] was not allowed to appear before the Regional Court until being called to give evidence; when giving his evidence, he was examined by both the judge and the expert” Cf. ECHR, Bönisch case, Judgement of 6 May 1985, para. 32. Further to the foregoing, the right to challenge the decisions of public agencies that are under the supervision of the State, when the latter is a party in an adversarial proceeding, has been clearly established by the case law of the ECHR in matters concerning the determination of social rights. In Lobo Machado v. Portugal, the applicant was an engineer employed by an oil company that was nationalized by the Portuguese State in 1975. The applicant retired in 1980. In 1986 he instituted proceedings before the industrial tribunal alleging that, following his retirement, he had been erroneously classified in a lower occupational grade, affecting the amount of his social security benefits. Consequently, he sought payment of the sums that he considered he should have been paid. The complaint was dismissed at first instance and on appeal. The applicant appealed to the Supreme Court. In 1989, the Attorney General, in representation of the State, submitted an opinion to the Supreme Court suggesting that the case had already been considered and should be dismissed. The petitioner had not been afforded access to this opinion or the opportunity to contest the arguments therein. Ultimately the Supreme Court dismissed the appeal. Three judges, a registrar and a member of the Attorney-General’s department were present at the deliberations. The applicant petitioned the European Commission and the ECHR, alleging violation of Article 6(1) of the European Convention on Human Rights and, insofar as is relevant here, argued that the Supreme Court of Portugal unfairly allowed a representative of the Attorney General’s department to be present at the deliberations while the applicant was not given the opportunity to answer the allegations made by that government agency. The ECHR held, “Regard being had, therefore, to what was at stake for the applicant in the proceedings in the Supreme Court and to the nature of the Deputy Attorney-General’s opinion, in which it was advocated that the appeal should be dismissed (see paragraph 14 above), the fact that it was impossible for Mr Lobo Machado to obtain a copy of it and reply to it before judgment was given infringed his right to adversarial proceedings. That right means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court’s decision.” See, in this respect, Application N° 15764/89, 23 February 1996, par. 31. Finally, it should also be noted that in other cases involving the determination of social rights, the ECHR has indicated that the principle of “equality of arms” requires that parties in judicial proceedings be able to examine the witnesses for the opponent, be informed of the reasons for administrative decisions, be able to appeal them, and have the right to challenge decisions on equal terms. See, in this respect, ECHR, X v. Austria, N° 5362/72, 42 CD 145 (1972). v. Harris, D. J., O´Boyle, M. O. and Warbrick, C., cit., p. 209; ECHR, Heinrich v. France, A 269-A, para. 56 (1994). [132] I/A Court H.R., The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law. Advisory Opinion OC-16/99 of October 1, 1999. Series A No. 16. This Advisory Opinion is the result of a consultation submitted by Mexico to the Inter-American Court on the issue of minimum judicial guarantees and the requirement of due process when a court sentences to death foreign nationals whom the host State has not informed of their right to communicate with and seek assistance from the consular authorities of the State of which they are nationals. In this regard, see, Ibid., para. 1. [133] Ibid., paras. 117 and 119. [134] Ibid., para. 119. At the same time, the above-cited reasoned opinion of Judge Sergio García Ramírez in Advisory Opinion OC -18/03, also underscores the importance of the role played by the principle of equality of arms in any proceeding, as a means to reduce any factors of real inequality that may obstruct litigants in the effective exercise and enjoyment of their rights. The advisory opinion in which this reasoned opinion is contained is predicated on the need for respect, protection, and the assurance of the rights of a particularly vulnerable group (migrant workers), who in the majority of cases face a situation of real inequality vis-a-vis the rest of society. Thus, in his reasoned opinion, the Judge notes, “Due process, for the purpose that interests us in OC-18/2003, entails, on the one hand, the greatest equality – balance, “equality of weapons” – between the litigants, and this is particularly important when on one side of the dispute is the vulnerable migrant worker and on the other the employer endowed with ample and effective rights, an equality that is only obtained – in most cases that reflect the true dimension of the collective problem – when the public authorities incorporate the elements of compensation or correction that I have mentioned above, through laws and criteria for interpretation and implementation; and, on the other hand, clear and flexible compliance with the State’s obligation to provide a service of justice without distinction, much less discrimination, which would entail the defeat of the weaker party at the very outset.” (Emphasis added) Cf. Reasoned Concurring Opinion of Judge Sergio García Ramírez in Relation to Advisory Opinion OC-18/03, Juridical Condition and Rights of the Undocumented Migrants. September 17, 2003. Series A No. 18, para. 38. It is also interesting in this connection to note the impressions of Judge García Ramírez with regard to the possible effects on the migrant worker (given his particular vulnerability) of going to court to demand his rights. On this point, the Judge says, “Indeed, undocumented workers usually face severe problems of effective access to justice. These problems are due not only to cultural factors and lack of adequate resources or knowledge to claim protection from the authorities with competence to provide it, but also to the existence of norms or practices that obstruct or limit delivery of justice by the State. This happens because the request for justice can lead to reprisals against the applicants by authorities or individuals, measures of coercion or detention, threats of deportation, imprisonment or other measures that, unfortunately, are frequently experienced by undocumented migrants. Thus, the exercise of a fundamental human right – access to justice – culminates in the denial of many rights. It should be indicated that even where coercive measures or sanctions are implemented based on migratory provisions – such as deportation or expulsion – the person concerned retains all the rights that correspond to him for work performed, because their source is unrelated to the migratory problem and stems from the work performed” (Emphasis added) Cf. Ibid., para. 39 [135] Cf. Report on Terrorism and Human Rights, cit. [136] Ibid., para. 399. [137] See, in this respect, Section III.c of this document. [138] The European Court of Human Rights has developed abundant case law in this connection. Thus, the ECHR requires that states parties guarantee the right to appeal administrative decisions to a court that offers the guarantees outlined in article 6 of the ECHR. As regards the scope of review by the court of justice, the decisions of the ECtHR all indicate that a court reviewing administrative decisions should have broad jurisdiction, i.e., over both the law and the facts. This ensures the individual the opportunity to have a judge rule definitively on the merits of his or her claims, with the proper guarantees of independence and impartiality. Thus, for instance, in Albert and Le Compte v. Belgium, the applicants were medical practitioners who alleged the unavailability under domestic law of a suitable legal remedy to challenge decisions imposing disciplinary measures on them adopted by a professional association. The decisions of this administrative body could only be appealed before an organ of the same nature as the association, whose decisions, in turn, had to be appealed the before the Belgian Court of Cassation. The European Court held that, under the Convention, administrative bodies that impose disciplinary sanctions must either comply with the requirements of Article 6 or, if not, be subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1) of the European Convention. The European Court considered that there had been a breach of Article 6(1) in this case because the professional association, which exercised disciplinary powers and could decide the merits of the case, did not hear the case publicly, and because the Court of Cassation, which met the procedural requirements of Article 6(1), could only examine points of law within the limited scope of this appeal. (ECHR, Albert and Le Compte v. Belgium, A 58, par. 29 (1983). v. Harris, D. J., O´Boyle, M. O. and Warbrick, C., Law of the European Convention of Human Rights, London, (1995), p. 192). At the same time, the pronouncements of the European Court on this issue suggest that, in addition to providing the guarantees set down in Article 6(1), tribunals that review decisions adopted in administrative proceedings should also have full appellate jurisdiction to control decisions as regards determination of facts and applicable law, at least in cases that do not involve questions of general policy. The guarantee has been applied directly to social rights. In Obermeier v. Austria, for example, the applicant had been dismissed by a government agency based on the consideration that such a decision was “socially justified.” Even though it was possible to appeal the decision to the Administrative Court of Austria, on the basis that the discretion that the government agency had exercised in the decision was incompatible with the object and purpose of the law, the ECHR held that such a limited review violated Article 6(1) of the European Convention (Cf. ECHR, Obermeier v. Austria, A 179 para. 70, (1990); v. Harris, D. J., O´Boyle, M. O. and Warbrick, C., cit., p. 193.) [139] Cf. Baena Ricardo et al. Case, cit. [140] It should be recalled that under “Law 25” (on which the dismissals were based) the only available recourse against dismissal was a motion for reconsideration to the same authority that ordered the dismissal followed by an appeal to the superior authority; the latter exhausted administrative remedies. Thereafter, the workers could institute contentious administrative proceedings before the Third Chamber of the Supreme Court. [141] Ibid., para. 140. [142] Ibid., para. 141. [143] Cf. Report on Terrorism and Human Rights, cit. [144] Ibid., para. 413. The IACHR is at present processing three cases which it has already declared admissible. Given that the question at issue in these cases is the scope of the right to judicial review of administrative decisions, they could give rise to new considerations by the Commission in this area. The cases in question are: Yolanda Olga Maldonado Ordóñez v. Guatemala; Maria Salvador Chiriboga and Guillermo Salvador Chiriboga v. Ecuador; and Mario Alberto Jara Oñate et al. v. Chile. See, in this respect, the following reports of the IACHR: Report Nº 36/04 of March 11, 2004; Report Nº 76/03 of October 22, 2003; Report Nº 31/03 of March 7, 2003. At the same time, it is worth drawing attention to Report Nº 51/01 adopted by the IACHR in the case of Rafael Ferrer-Mazorra et al. v. United States on April 4, 2001. In that report, the IACHR expounds on the right to judicial review in the area of administrative detentions. Insofar as is relevant for the purposes of this report, the Commission notes that, “…the domestic courts have determined that their scope of review is not the traditional “abuse of discretion” standard, but rather is limited to ascertaining whether the Attorney General has advanced a “facially legitimate and bona fide reason” for his decision to deny parole and continue to detain a Mariel Cuban. […] The Commission cannot consider a review of this nature and scope to be sufficient to effectively and properly guarantee the rights under Articles I and XXV of the Declaration. Rather, in respect of individuals falling within the authority and control of a state, effective judicial review of the detention of such individuals as required under Article XXV of the Declaration must proceed on the fundamental premise that the individuals are entitled to the right to liberty, and that any deprivation of that right must be justified by the state in accordance with the principles underlying Article XXV, as outlined above. In other words, it must address not only compliance with the law, but the quality of the law itself in light of the fundamental norms under the Declaration. […]Based upon the foregoing analysis, the Commission finds that the State has detained the petitioners in violation of their rights under Articles I and XXV of the American Declaration.” (Emphasis added) See in this respect, IACHR, “Rafael Ferrer-Mazorra et al. v. United States, April 4, 2001, paras. 234-236. [145] I/A Court H.R., The Mayagna (Sumo) Awas Tingni Community Case. Judgment of August 31, 2001. Series C No. 79. [146] Ibid., para. 104.b). It should be clarified that the Inter-American Court did not refer in its judgment to this particular point made by the IACHR in its arguments as regards violation of Article 25 of the American Convention. The Court did indeed find that said article had been violated in this case; however, on this point it only took into account the fact that, “Nicaragua has not adopted the adequate domestic legal measures to allow delimitation, demarcation, and titling of indigenous community lands, nor did it process the amparo remedy filed by members of the Awas Tingni Community within a reasonable time.” Ibid., para. 137. Another precedent in which the IACHR was emphatic with respect to the need for courts to return reasoned decisions on merits in cases they are called on to adjudicate, is the case of Mr. Gustavo Carranza v. Argentina. In its report on merits, the IACHR contrasted the scope of Articles 8 and 25 of the American Convention with the theory of so-called “non-justiciable political matters.” The IACHR concluded that the way in which the Argentine courts had proceeded constituted a violation of Mr. Carranza’s rights to a fair trial and judicial protection. Accordingly, inter alia, the IACHR reached the following conclusions: “…the Commission observes that Article 25(2)(a) expressly establishes the right of any person claiming judicial remedy to ‘have his rights determined by the competent authority provided for by the legal system of the state.’ To determine the rights involves making a determination of the facts and the alleged right--with legal force--that will bear on and deal with a specific object. This object is the claimant’s specific claim. When in this case the judicial tribunal denied the claim and declared “the matters interposed to be non-justiciable” because “there is no legal jurisdiction with regard to the matters set forth and it is not appropriate to decide thereon,” it avoided a determination of the petitioner’s rights and analyzing his claim’s soundness, and as a result prevented him from enjoying the right to a judicial remedy under the terms of Article 25.” Cf. IACHR, Report Nº 30/97, Case 10.087, Gustavo Carranza, Argentina, September 30, 1997, para. 77. [147] I/A Court H. R., Case of the Indigenous Community Yakye Axa. Judgment of June 17, 2005. Series C No. 125. [148] IACHR, Application to the Inter-American Court in the Case of the Indigenous Community Yakie Axa v. Paraguay, paras. 106 and 107. [149] Ibid., List of Demands, para. 3. It should be mentioned on this point that the Inter-American Court merely stated, “With regard to the amparo remedy and the motions to restrain innovation and register the complaint, the Court deems that these are ancillary proceedings, which depend on the administrative land claim proceeding that was already deemed ineffective by the Court. Therefore, it is unnecessary to enter into further details.” Cf. Inter-American Court, Case of the Indigenous Community Yakye Axa v. Paraguay. Judgment of June 17, 2005. Series C No. 125, para. 105. [150] Cf., Case of Claude Reyes et al., cit. [151] An account of this case may be seen in Section III. A. of this report. [152] Cf., Case of Claude Reyes et al., cit., para. 126. [153] Cf., Case of Claude Reyes et al., cit., para. 127. [154] Cf., Case of Claude Reyes et al., cit., paras. 127, 134, 135. [155] Cf., Case of Claude Reyes et al., cit., para. 136. [156] In the Baena Ricardo et al. Case, the Court also adopted a position on the importance of this guarantee in terms of observance of the right to a fair trial in judicial proceedings. Thus, in this case, the Court weighed the decision of the Supreme Court of Panama on the amparo petitions [constitutional guarantee protection remedies] presented by the workers following their dismissal and concluded, “The reason to file the 49 constitutional guarantee protection remedies that were filed with the Full Supreme Court by the dismissed workers, was that Conciliation and Decision Board N° 5, the tribunal responsible for hearing cases of the workers dismissed from certain State institutions at the time of the events that occurred December 4 and 5, 1990, had decided not to admit such cases because of its being incompetent by virtue of Law 25. […] In resolving about such civil rights protection remedies, the Supreme Court determined that Conciliation and Decision Board N° 5 had to admit the cases and support the reasons why it did not regard itself competent to hear them. The constitutional rights protection remedies were, therefore, dealt with by the Supreme Court, but only to decide that Conciliation and Decision Board N° 5 had to demonstrate its incompetence, that is, in such a way that no decisions were being made on the problem of the dismissal, nor concerning the provisions in Article 25 of the Convention.” (Emphasis added) Cf. Baena Ricardo et al. Case, para. 138. [157] For its part, the European System of Human Rights has had the opportunity to analyze the right to a trial within a reasonable time in cases such as “Deumeland”. In that case, the applicant, as heir to his mother, continued the proceedings she had commenced for a widow’s supplementary pension claiming that the death of her husband had been the consequence of an industrial accident on the way to or from work. The time taken to process the claim after being heard by different social courts of the Federal Republic of Germany before it was finally dismissed (some 11 years) led to the filing of a petition with the European Commission, which charged the German State with a breach of Article 6(1) of the European Convention on Human Rights by its failure, according to the applicant, to resolve his case in a reasonable time. The Commission declared the application inadmissible, with the conclusion that Article 6(1) did not apply to the instant case. For its part, the ECHR examined the application in the light of its previous case law, whereby it considered that the term “civil rights and obligations” does not cover only private-law disputes in the traditional sense. Accordingly, it considered the public-law and private-law aspects of the application and found the latter to be predominant. It attached particular importance to the fact that the widow of Mr. Deumeland senior was not affected in her relations with the public authorities as such, acting in the exercise of discretionary powers, but in her personal capacity as a private individual. Her right was a personal, economic and individual right, a factor that brought it close to the civil sphere. Furthermore, the cause of the obligation was linked with the fact that her husband was a member of the working population, having been an employee of the Land, which had been sued. The Court also found that German accident insurance bore a close affinity to insurance under the ordinary law. Specifically with regard to the right to a trial within a reasonable time, the ECHR, in considering the time taken by the German courts to dispose of a social security claim (more than 10 years), found that “an interval of such length is abnormal for the circumstances, especially having regard to the particular diligence required in social security cases.” Thus, for the reasons summarized above, the Court held by nine votes to eight, that Article 6(1) of the European Convention on Human Rights was applicable to the case and that the State had breached said provision. Cf. ECHR, Deumeland, Judgement of May 29, 1986, (Pub.ECHR, Series A, No. 100). [158] IACHR, Report Nº 100/01, Case 11.381, Milton García Fajardo et al. v. Nicaragua, October 11, 2001. [159] Ibid., paras. 51 and 53. [160] Ibid., para. 54. [161] Ibid., paras. 55 and 56. [162] Ibid., para. 58. Emphasis added. [163] IACHR, Report Nº 67/01, Case 11.859, Tomás Enrique Carvallo Quintana, Argentina, June 14, 2001. [164] Ibid., para. 74. [165] Ibid., para. 75. Another admissibility report of the IACHR that may be considered on this point is Report Nº 82/01 in Case 12.000, Anibal Miranda v. Paraguay, October 10, 2001. [166] IACHR, Report Nº 57/02, Case 11.382, Finca La Exacta v. Guatemala, October 21, 2002. [167] Ibid., para. 87. [168] On this point, attention should also be drawn to the admissibility report adopted by the IACHR in the case of the Workers Belonging to the “Association of Fertilizer Workers” (FERTICA) Union v. Costa Rica. In that report, the IACHR stated: “The Commission is of the view that the allegations of the petitioners regarding the alleged violations of rights protected by the American Convention, if proven, could characterize a violation, to the detriment of the alleged victims, of the right to a fair trial, freedom of association, and the right to judicial protection, guaranteed in Articles 8, 16, and 25, considered in conjunction with Article 1(1) of the American Convention. […] By virtue of the foregoing, in examining the merits of the petition, the Commission will have to determine whether the unwarranted delay of 10 years in rendering a decision on the remedies pursued is a violation of judicial guarantees related to a reasonable period of time (Article 8.1 of the Convention), and whether the alleged victims had access to simple, prompt, and effective recourse to a competent court or tribunal, which would have guaranteed them the right to justice and judicial protection established in Article 25 of the Convention. It must further determine whether there was a violation of the right to freedom of association established in Article 16 of that international instrument, which occurred by way of the alleged unwarranted delay of the judicial authorities.” (Emphasis added) Cf. IACHR, Report 21/06, Petition 2893-02, Admissibility, Workers Belonging to the “Association of Fertilizer Workers” (FERTICA) Union, March 2, 2006, paras. 42 and 43. [169] Ibid., para. 90. [170] Ibid., para. 91. [171] IACHR, Report Nº 40/04 Case 12.053, Merits, Maya Indigenous Communities of the Toledo District, Belize, October 12, 2004. [172] Ibid., para. 185. Emphasis in the original. [173] Ibid., para. 176. Emphasis added. [174] Ibid., para. 176. Emphasis added. [175] Ibid., para. 185. [176] IACHR, Report Nº 3/01, Case 11.670, Amilcar Menéndez, Juan Manuel Caride et al. (Social Security System) Argentina, January 19, 2001. [177] Ibid., para. 3. [178] I/A Court H. R., Case of Acevedo Jaramillo et al. Judgment of February 7, 2006. Series C No. 144. [179] Cf. Separate Opinion of Judge A. A. Cançado Trindade, paras. 3 and 4, in I/A Court H. R., Case of Acevedo Jaramillo et al. Judgment of February 7, 2006. Series C No. 144. [180] See in this respect, Separate Opinion of Judge A. Cançado Trindade, paras. 3, 4 and 6, in I/A Court H. R., Case of Acevedo Jaramillo et al. Judgment of February 7, 2006. Series C No. 144. [181] Concurring Opinion of Judge Sergio García Ramírez, para. 36, in I/A Court H. R., Case of López Álvarez. Judgment of February 1, 2006. Series C No. 141. [182] Ibid. |
