6 Due Process and Judicial Protection

Subject(s):

Legal representation, right to — Right to a judge — Right to effective remedy — Right to a trial within a reasonable time — Right to a public hearing — Judicial independence/impartiality — Presumption of innocence — Migrants, rights

Article 8, the Convention’s primary due process provision, is called “Right to a Fair Trial.” However, the Article goes far beyond trials and even judicial matters, regulating proceedings of “any public authority, whether administrative, legislative or judicial, which, through its decisions determines individual rights and obligations.” These broad protections have become more expansive still through numerous judgments of the Inter-American Court. The Convention’s Article 25, Right to Judicial Protection, primarily referred to amparo—a “simple and prompt” judicial recourse to protect “fundamental rights” recognized in either State law or in the American Convention, and includes the writ of habeas corpus. Yet the Court has expanded the remedies of Article 25 beyond amparo, and the Article’s full content has become unsettled. This owes, at least in part, to the Court’s frequent method of combining Articles 8 and 25 in its judgments; the practice has hindered the latter provision’s meticulous development.