Due process

Human, civil and political right, which consists of the set of procedural guarantees that protect the individual subjected to a judicial procedure. It comes from the seventh article of the Declaration of the Rights of Man and of the Citizen of 1789, as well as the fourth to seventh amendments of the US Constitution of 1776, adopted in 1791 (Valencia, 2003: 107).

The right to due process is recognized mainly in the UDHR, articles 8 (right to an effective remedy), 10 (right to be heard by an independent and impartial court) and 11 (principle of presumption of innocence), in the ICCPR, articles 14 (judicial guarantees), 15 (principle of retroactivity of criminal law) and 26 (principle of equality before the law), and in the ACHR, articles 8 (judicial guarantees), 9 (principle of legality and retroactivity), 10 (right to compensation) and 25 (judicial protection).

The provisions related to the right to due process of law –both of the ICCPR and of the ACHR– create a positive obligation in the States Parties to maintain the institutional infrastructure necessary for an adequate administration of justice, as well as to promulgate and implement legislation that guarantees that procedures are, in themselves, fair and equitable (OACNUDH, 2004: 233-234).

The UN Human Rights Committee (see Universal System for the Protection of Human Rights, definition and structure of) in its General Comment No. 13 regarding the interpretation and scope of the right to due process, particularly in the ICCPR, stated that : “[…] the purpose of all these provisions is to guarantee the proper administration of justice and, to this end, affirm a series of individual rights, such as equality before the courts and tribunals and the right to be heard publicly with the due guarantees by a competent, independent and impartial court, established by law […].”

Statement

Term used to refer to an international instrument, generally of an declarative nature that, unlike a treaty, does not generate legal obligation. It is important to note, however, that sometimes some declarations may be intended to create obligations (for example, to be the basis for the future elaboration of a treaty) or that they were not created with that intention, but through international custom have become mandatory. An example constantly used to illustrate this last point is the case of the UDHR, which emerges as “a common ideal for which all peoples and nations must strive” (UDHR: preamble). However, over time, its legal value has been debated, the main positions being the following:

a) Full mandatory character. This trend considers that the UDHR has been accepted by international practice as the universal and consensual catalog of rights and freedoms. From this point of view, it has obtained a legal character of customary international law, which makes it mandatory for all Member States (Villán Durán, 2002: 225).

b) Mandatory nature of certain parts. This idea is based on the fact that the UDHR is only binding on those fundamental human rights that form part of the hard core of human rights, which, due to their importance, cannot be repealed under any circumstance (for example, rights that are linked directly with respect for human dignity, such as the right to life, to the physical and moral integrity of people, or the prohibition of slavery, among others) (Villán Durán, 2002: 226-227).