INTERNATIONAL TREATIES AND DUE PROCESS OF LAW IN THE INTER-AMERICAN COURT OF HUMAN RIGHTS: REACH AND SENSES OF JUDICIAL PROTECTION André Luiz Valim Vieira¹ The theme of judicial protection (Article 25) of the Convention affirms the right of every person to a simple and prompt recourse or to any other effective recourse, before competent judges and tribunals.

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INTERNATIONAL TREATIES AND DUE PROCESS OF LAW IN THE INTER-AMERICAN 

COURT OF HUMAN RIGHTS: REACH AND SENSES OF JUDICIAL PROTECTION 

André Luiz Valim Vieira¹ 

Abstract: The present work has as its general objective the study and analysis of international treaties to which Brazil has expressed its support or agreement and deals with due international legal process and how this theme is addressed by the Inter-American Court of Human Rights in the trial of cases and processes related to human rights provided for in the American Convention on Human Rights (Pact of San José, Costa Rica). 

For a specific objective, we intend to identify how the Inter-American Court treats the process and proceedings before its jurisdiction and in what way it seeks to guarantee the right to due process of law and the perspective of the court's judges on the scope and characteristics of the institute of judicial protection, using for this purpose cases and judgments of the court itself to which Brazil was a party.

 For this research, we used the analytical method through a historical-bibliographic research. 

Keywords: Due process of law; Human Rights; Judicial guarantee; Judicial protection.

 Abstract: 

The present work has as it's general objective the study and analysis of international treaties to which Brazil has expressed its support or agreement and deals with due international legal process and how this theme is addressed by the Inter-American Court of Human Rights in the trial of cases and processes related to human rights provided for in the American Convention on Human Rights (Pact of San José de Costa Rica). 

For a specific objective, we intend to identify how the Inter-American Court treats the process and proceedings before its jurisdiction and how it seeks to guarantee the right to due process of law and the perspective of the judges of the court on the scope and characteristics of the institute of judicial protection, using cases and judgments of the court itself to which Brazil was a party. 

For this research, we used analytical methods through a historical-bibliographic research. 

Keywords: Due process; Human Rights; Judicial guarantee; Judicial protection. 

Table of Contents: 

1. Introduction. 

2. Due Process of Law and Judicial Protection. 

3. Jurisprudence of the Court and Brazil as a party: Cases Damião Ximenes Lopes and Nogueira de Carvalho. 

4. Scope and Interpretation of Due Process of Law as Judicial Protection in the Inter-American Court of Human Rights. 

5. Final Considerations. 

6. Bibliography. 

"We are what we do, but we are, mainly, what we do to change what we are." Eduardo Galeano 1 

INTRODUCTION 

This article aims to study and understand the scope and limits of the guarantees of due process of law on the themes of judicial guarantee and judicial protection as provided for and understood by the Inter-American Court of Human Rights. 

For this purpose, we will use analytical methods through a historical-bibliographic research. 

Our general objective is, therefore, the study and analysis of international treaties to which Brazil has expressed adhesion or agreement and that address international due process of law, and how this theme is approached by the Inter-American Court of Human Rights in the judgment of cases and processes related to human rights provided for in the American Convention on Human Rights (Pact of San José, Costa Rica). 

Furthermore, as a specific objective, we intend to identify how the Inter-American Court handles the process and procedures before its jurisdiction and in what way it seeks to guarantee the right to due process of law and the perspective of the court's judges on the scope and characteristics of judicial guarantees, using for this purpose cases and judgments of the court itself to which Brazil was a party.

 In the first part, we will address due process of law as the application of the hypotheses provided for in the regulations on access to justice, regarding judicial protection (Art. 25 of the American Convention on Human Rights). 

In the second part of this work, in order to limit the scope of the institutes of due process of law concerning "judicial protection," as to interpretation and application, we will analyze the contentious cases in which Brazil was a party before the Inter-American Court of Human Rights, intending then to analyze 02 (two) decisions: Ximenes Lopes vs Brazil, with a judgment of July 4, 2006; and, Nogueira de Carvalho and Another vs Brazil, judgment of November 28, 2006. 

Both were delivered in the same year, 2006, and reveal the Inter-American Court's concern with the ineffectiveness of the Brazilian criminal prosecution system. In the third part, finally, we propose to understand the scope and meaning of due process and the institute of access to justice as effective judicial protection, as provided for in Article 25 of the American Convention. 

We thus intend to verify how an inefficient and unjust procedural system, prone to impunity, violates due process of law. In this case, Brazil has the opportunity of these landmark decisions as a means to modify and improve its procedural justice system with a view to giving effect to the precept inscribed in the human rights treaty (American convention). 2 DUE PROCESS OF LAW AND JUDICIAL PROTECTION. 

To speak of due process of law first requires reporting a concept that everyone understands, yet it lacks adequacy and adaptation to the observed reality. If it were necessary to make a list of the essential requirements for due process of law, we would hardly reach a consensus due to the particularities of each legal system and from various prisms. However, a more rationally constructible task is to analyze a given case or process and verify whether it respects minimum and reasonable internationally recognized standards. Firstly, and still for the purpose of establishing a basis for dialogue, we need to understand that when we refer to due process of law, we are referring to minimum conditions of legality and juridicity centered on historical-rational constructions regarding certain rights that must be provided for and guaranteed for any punishment or penalty to exist: from criminal reprimands to civil and administrative liabilities. Secondly, we also need to keep in mind that due process of law represents minimum and necessary conditions in any type of process or procedure that may BY 

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Vol. 4, no. 2, July to December 2021. pp 211-224 result in prejudice or restrictions to internationally provided for and guaranteed human rights: whether in judicial processes or any other process or procedure of a non-jurisdictional nature that could result in limitations or restrictions of human rights or fundamental rights positively expressed in domestic legislation. Judicial guarantees can be understood as a set of requirements that must be observed in procedural instances (RIVAS, 2019, p. 264). In the specific case of judicial protection, this norm represents a plexus of provisions and guarantees corresponding to access to justice. And more than merely formal access to justice, it establishes conditions and certain obligations for the Public Power, both for judicial bodies and for the administrative, investigative, and public policy promotion spheres, to guarantee every person access to the administration of justice in its entirety for the realization of their rights. Article 25 Judicial Protection 

§1. Everyone has the 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 recognized by the constitution or laws of the state or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties. §2. 

The States Parties undertake: 

§3. To ensure that the competent authority provided for by the legal system of the State shall decide on the rights of any person who lodges such a recourse. §4. To develop the possibilities of judicial recourse. 

§5. To ensure the enforcement, by the competent authorities, of any decision in which the recourse has been deemed well-founded. Since the judgment of the Velásquez Rodríguez vs. Honduras case, when analyzing the exceptions and preliminary objections of this hard case, the Inter-American Court has established as a cornerstone of access to justice and due process of law, instituting as a state obligation, the provision of access for victims of human rights violations to an effective jurisdiction with a reasonable duration regarding any consequences and responsibilities. Judicial protection in the first paragraph of Article 25 proclaims the right to access to justice. This, therefore, represents a peremptory norm of International Law (RIVAS, 2019, p. 748). More than that, access to justice and its corollaries, such as the right of action and the right to petition, are not exhausted with the mere processing of cases in the competent jurisdiction according to the procedural rules of each country. On the contrary, they mean ensuring that victims, their 

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families, and indirectly all of society, in a reasonable and not delayed time, have the right to obtain and achieve a jurisdictional response that allows for the delimitation and identification of those responsible, civilly or criminally, thus applying the penalties and reparations that are due according to the laws and human rights: both provided for domestically and in international treaties and conventions. For Brazil and its procedural norms, due process of law represents the right to a fair, effective, and timely process; adding also the right to a response on the merits from the Judiciary regarding what is expected or intended by the parties to the process. For these reasons, it is affirmed that due process of law, in contemporary times, represents the right to a jurisdictional response or protection within a reasonable time. "Judicial protection consists in the predisposition to all of a fair, adequate, and effective process, with all the necessary means to obtain the best possible result for the situation brought to court. It is the jurisdiction's response to the parties' right to participate in court" (MARINONI, 2021, p. 41). Regardless of whether this jurisdictional response is yes or no regarding compensation; whether it consists of a conviction or an acquittal in a criminal action. However, if there is no response or decision within a reasonable time, one is inevitably facing a violation of internationally protected human rights. 3 JURISPRUDENCE OF THE COURT AND BRAZIL AS A PARTY: THE CASES OF DAMIÃO XIMENES LOPES AND NOGUEIRA DE CARVALHO. The Inter-American Court of Human Rights, founded on May 22, 1979, is located in San José, Costa Rica, and was created by the American Convention on Human Rights. For the purpose of this work, in order to limit the scope of the institutes of due process of law concerning "judicial protection," as to their interpretation and application in the contentious cases in which Brazil was a party before the Inter-American Court of Human Rights, we intend to analyze 02 (two) decisions: Ximenes Lopes vs Brazil, with a judgment of July 4, 2006; and, Nogueira de Carvalho and Another vs Brazil, judgment of November 28, 2006. 

The first case, submitted to the Commission on November 22, 1999, concerned Brazil's responsibility for the violation of rights enshrined in the American Convention on BY NC ND RECEIVED: 30/11/2021ACCEPTED: 09/12/2021 This work is licensed with a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. --- PAGE 6 --- 216 

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Human Rights related to life, personal integrity, judicial guarantees, and specifically, judicial protection (Art. 25) of the rights charter in relation to Damião Ximenes Lopes. Then a patient in a private psychiatric hospital that provided services through the public health system (SUS), the victim died as a result of various aggressions and omissions. While undergoing psychiatric treatment, Damião Ximenes Lopes was a victim of violent, inhuman, and degrading conditions. In addition to this fact, the infringement of human rights protective norms post factum occurred due to the lack of investigation and judicial guarantees of the legal process to determine responsibility, that is, the omission of the Public Powers continued even after the victim's death, as the investigation and accountability system were not responsible for resolving the events, resulting in impunity. The victim's sister, Irene Ximenes Lopes Miranda, then petitioned the Commission (petition no. 12.237) requesting the Brazilian State be held responsible. The Inter-American Commission sent an official document (Merits Report No. 43/03) to Brazil, setting a two-month deadline for the implementation of solutions and responses. However, after the deadline passed and with the absence of measures, the case was taken to the 

Inter-American Court. During the procedural course, many facts and evidentiary acts took place, leading up to the merits judgment on July 4, 2006. The issue of judicial protection, contained in Article 25 of the Convention, was then recognized as having been breached by Brazil, since, after more than 06 (six) years since the death of Damião Ximenes Lopes, neither the criminal process nor the civil liability action had yet concluded, remaining pending and in progress. The theme of access to justice of due process of law from the perspective of the rights of the victim and society had a second highlight in the judgment of the Nogueira de Carvalho and Another vs Brazil case. The parents of Gilson Nogueira de Carvalho submitted a petition to the 

Inter-American Commission reporting the death of their son, then a lawyer and denouncer of extermination practices and crimes against human rights in the State of Rio Grande do Norte, carried out by police authorities. The violation of judicial protection occurred due to the presumed lack of due diligence in the process of investigating the facts and punishing those responsible for the death of the human rights lawyer who dedicated part of his professional work to denouncing crimes committed 

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by the group that called itself and was known as the "golden boys," a supposed extermination group that included civil police officers and other state officials. The Inter-American Court in the Nogueira de Carvalho Case found a violation of the right to judicial protection, as it was established that the authorities' actions in the investigation of the death of the lawyer and human rights defender were deficient, taking into account the pre-existing evidence regarding the possible involvement of members of the Civil Police of the State of Rio Grande do Norte. Even with the identification of the perpetrators, a reasonable procedural progress was not possible. The victim's parents and petitioners before the Inter-American Commission used all the resources that were, in theory, available; these, however, were systematically denied for formal procedural reasons. As in the Ximenes Lopes case, the Nogueira de Carvalho case exposed internationally Brazil's fragility in implementing measures to effectively punish those responsible: sometimes due to a lack of investigation, a deficient and insufficient investigation, the delay of the criminal process, or the impunity resulting from the lack of accountability. When dealing with crimes committed by state agents and public authorities, often, the inertia or omission of the State itself is interpreted as a disinterest in punishment, because in doing so, it would be acknowledging the crimes and errors committed by the state entity itself through its public security representatives: in the case brought to international judgment, for the fact that state agents practiced crimes and illegalities: they kidnapped, murdered, and tortured people, without receiving adequate investigation or any punishment. In both cases submitted to and judged by the Inter-American Court, we perceive the failures and omissions of the Brazilian State in its internal systems of investigation and judicial processing. Because, from the perspective of international law, compliance with the treaty is examined. The State is evaluated as a whole, regardless of the body or norm that breaches the international commitment (ECHEVERRIA, 2017, p. 11). This means infringement by state authorities of various powers. However, when it comes to disrespect for international human rights norms, it becomes clearly identifiable how the inter-federative system fails in its institutional missions. The protection provided for in the theoretical-normative plane proves to be fragile and deficient. RECEIVED: 

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4 SCOPE AND INTERPRETATION OF DUE PROCESS OF LAW AS JUDICIAL PROTECTION IN THE INTER-AMERICAN COURT OF HUMAN RIGHTS. When we think of cases judged by

international courts of justice, among which the Inter-American Court of Human Rights is included, we are reflecting on contentious cases where sensitive and relevant facts violating internationally regulated human rights have occurred. Also considering the decisions of international courts as a source of International Law, according to the provision of the Statute of the International Court of Justice, the study of international jurisprudence is extremely essential. Although international jurisprudence has gained prominence in recent decades, there is still a chasm between the theory and the reality of human rights in relation to the reality of countries, especially those of the third world. It consists, then, "[...] of the set of repeated judicial decisions in the same sense, in similar matters, rendered by international jurisdictional bodies for the settlement of disputes relating to matters of International Law" (PORTELA, 2015, p. 67). While there are legislative and legal provisions for protection, sometimes these normative systems are not perfected, thus there is a gap in the efficiency and effectiveness of human rights protection at the international level. For each case judged, how many countless other similar or alike events occur in the signatory countries of that rights treaty. How many aggressive and delegitimizing facts of human rights occur hidden, without a solution or remediation. This distance between theory and practice that we see as natural and indisputable is based on the reasons that justify indolence and passivity when it comes to building (or destroying) human rights daily and in all social places. Surely we can see the trap here: by considering the distance between what is practiced and what is said as natural, normal, and indisputable, one is consolidating and strengthening a way of understanding and practicing human coexistence without aspirations of achieving greater coherence in what is universally socio-historically produced, and which plays into the particular interests of those who benefit most from this being so for personal desires, for intentions and power relations, or because they are convinced that life can only be classified through hierarchies and classifications of people who are superior and deserve better conditions of existence compared to others who, by being considered inferior and losers, deserve to be treated with contempt. (RUBIO, 2016, p. 04) 

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In the Damião Ximenes Lopes case, the Court's interpretation of Article 25 was that victims of human rights violations, or their families, should have ample opportunities to be heard and to act in the respective processes, both in the attempt to clarify the facts and punish those responsible, and in the search for a due, integral, fair, and effective reparation; this means, in a reasonable time and in an amount that can repair the damage. Regarding effective material reparation consisting of compensation, the Court has several precedents for economic and indemnifying compensations to achieve integral reparation (OCHOA-SANCHEZ, 2021, p. 318). Conversely, the ineffectiveness of criminal procedure and penal accountability still does not find efficient means of reparation to this day. Although through recommendations the Brazilian State has proposed in recent years to make reforms in legislation on investigation methods and on criminal procedural procedures; few advances have been made. We could even say that these advances are still insufficient and inefficient today for a reasonable duration of the process, should the cases of both Damião Ximenes Lopes and Nogueira de Carvalho be repeated today. Due process of law in its aspect of effectiveness and respect for procedural rights and guarantees is also deduced from the human right of access to justice for the victim or their representatives and family members. The omission of the Brazilian State was precisely not to carry out and provide an effective investigation and a judicial process conducted in accordance with the requirements of the American Convention, with the aim of clarifying the facts, punishing those criminally responsible, and granting adequate compensation for civil liability. The Court has already established that the criteria for analyzing whether a process had a reasonable duration or not are: those related to the complexity of the matter; the procedural activity and participation of the interested parties; and, the conduct of the authorities and procedural subjects. In the judgment of the Damião Ximenes Lopes vs Brazil Case, the Court reached the conclusion that: 

Based on the chapter on proven facts, as well as on the allegations of the Commission, the representatives, and the State, this Court considers that this case is not complex. There is a single victim, who is clearly identified and who died in a hospital institution, which makes it possible for the criminal proceedings against the alleged perpetrators, who are identified and located, 

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to be simple. Furthermore, from the body of evidence, it is clear that the family of Mr. Damião Ximenes Lopes cooperated in the processing of the police investigation and the criminal and civil proceedings, with the purpose of advancing the procedure, knowing the truth of what happened, and establishing the respective responsibilities. [...] The delay in the process was solely due to the conduct of the judicial authorities. (IACtHR, 2006) 

It should be highlighted that it is a basic principle of the law of international responsibility of the State, supported by International Human Rights Law, that every State is internationally responsible for acts or omissions of any of its powers or organs in violation of internationally consecrated rights. After all, the responsibility of States for the commission of internationally wrongful acts (TRINDADE, 2021, p. 21) is demandable for both actions and practices as well as for omissions. An omissive attitude of the State in not providing or foreseeing mechanisms for a reasonable duration of the process through legislative and administrative norms and for the effectiveness of determining responsibilities for human rights violations leads to disrespect and afflicts the human dignity of the victim and their families, regarding impunity of a criminal nature and civil non-accountability. The Inter-American Court considers that, according to the 

Convention, States Parties are obliged to provide effective judicial remedies to victims of human rights violations (Article 25), which must be substantiated in accordance with the rules of due process of law. Therefore, the argument of delay in the judicial process of accountability due to respect for the due process of the accused and defendants and their procedural defense guarantees cannot obstruct the due process of law of the victim and society. The Court, in the ratio decidendi of its judgment, concluded that the State did not provide the family of Ximenes Lopes with an effective remedy to guarantee access to justice, the determination of the truth of the facts, the investigation, identification, processing, and, if applicable, the punishment of those responsible and reparation for the consequences of the violations. The State is, therefore, responsible for the violation of the rights to judicial guarantees (Article 8) and, especially, to judicial protection (Article 25) of the Convention. Due process of law has its guarantor aspect and procedure for the protection of the rights and procedures necessary for criminal conviction and civil liability for crimes and damages. It is a means of protecting the individual and all persons against authoritarian inroads by state representatives, 

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against exceptional courts or tribunals, and against restrictions on internationally prescribed human rights: such as liberty and property. However, due process of law also has an aspect or face of protecting the victim and their family, if not all of society, consisting in the provision of effective, efficient, and reasonable means of procedural processing with the objective of reaching a final decision concerning criminal and civil responsibilities for illicit acts that affect human rights provided for in international rights treaties. When due process of law as a legitimate personal and institutional expectation of accountability is not realized, inevitably, there is an infringement of the provision of Article 25 of the Convention. As long as the right to petition and accountability - whether initiated by the offended party, the victim, or their family, and by the state body constitutionally holding this prerogative - is not materially achievable in actions that have a reasonable duration, effective results, and the certainty of fair and impartial judgments, due process of law is not fully complete. Furthermore, due process of law also includes the recognition of a natural and impartial court, without interference from other organs of the Public Power, a clear violation of due process (CATALÀ i BAS, 2017, p. 109). It is difficult, when due process of law, in its facet of reasonable duration of the process and effectiveness, develops with hindrances, delays, and slowness for years without a decision on the merits, to abstract from the procedural march the interference of other powers or authorities precisely aiming at the non-conclusion of the accountability procedure. 

5 FINAL CONSIDERATIONS. 

In this work, we sought to address the theme of due process of law from the perspective of the right to access to justice based on the primacy of the "judicial protection" guarantee as provided for in Article 25 of the American Convention on Human Rights (Pact of San José, Costa Rica). 

By analyzing the judgments in which the Brazilian State was involved and convicted in 2006: the Ximenes Lopes Case; and, Nogueira de Carvalho, we were able to highlight how the primacy of judicial protection and the search for a process with a reasonable duration and a proportional result serve to guarantee the rights of the victims and of all those who may suffer direct or ricochet damages from the violation of human rights. 

In these cases under international sub judice, the issue of due process of law was addressed from the perspective of the victim, their family, and society, as the cases were only brought before the Inter-American Court of Human Rights due to the omission of the Brazilian Public 

Power in taking measures conducive to the efficiency and reasonable duration of the process.

 The Judiciary and other executive, investigative, and repressive bodies proved to be excessively slow, formal, bureaucratic, and inefficient. This resulted in the perpetuation of the suffering of the families of the victims of the acts committed and not judged by the Brazilian State. The investigation actions and the promotion of judicial processes that could result in a merits analysis regarding civil and criminal liability were excessively long and delayed.

Many years after the deaths and violation of the victims' human rights occurred, there was still no judicial decision to determine any responsibilities and perpetrators: by action or even by omission. 

This state inefficiency ends up doubly violating the order of human rights guarantees: first, that of the victim; and, subsequently, that of the families and society when the process of investigation and accountability proves incapable of resolving a just decision in a reasonable time. The disrespect and ineffectiveness of judicial protection and access to a fair process with a reasonable duration and effective solution ends up violating the human rights of the families, resulting in even more impunity and injustice. 

The theme of judicial protection (Article 25) of the Convention affirms the right of every person to a simple and prompt recourse or to any other effective recourse, before competent judges and tribunals. 

The term "recourses" used in the expression of the cited article refers, therefore, to means and conditions and not only to recourses stricto sensu as procedural manifestations of nonconformity. By not providing an effective investigation and an efficient judicial process with a reasonable duration, Brazil, in the cases of Damião Ximenes and Gilson Nogueira, ended up directly violating the human right to which it was a signatory. 

In both cases, it was possible to ascertain that the actions and omissions were carried out directly by state representatives and authorities and, therefore, in official missions and in accordance with the law. Even so, the protection of the victim and their family occurred deficiently: which is why due process of law as judicial protection is denoted as an attribute of guaranteeing a fair and reasonable process, achieving a judicial decision on 

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the merits of the violated human rights and with the accountability of its authors or those directly linked to the omissions of the duty of protection.

Without this, that is, without the predictability of judicial and procedural means of accountability along with the achievement of decisions within reasonable and consistent timeframes with the legitimate expectations of society and the victims' representatives; we cannot speak of the guarantee and effectiveness of the human rights ratified at the international level by Brazil. 

The guarantee of judicial protection enshrined in Article 25 of the American Convention, therefore, more than being the content of the expression of this right, consists of a state duty whose non-fulfillment must be demanded of the Brazilian State: including through measures to (re)structure the means of investigation and accountability via the Judiciary. 

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CATALÀ i BAS, Alexandre H.; 

TORRICOS, Marcela Ortíz. La comunicación horizontal y vertical en los sistemas americano y europeo de protección de derechos humanos: a propósito del derecho al juez natural. Estudios de Deusto, v. 65-1, p. 73-121, January-June. 2017. 

IACHR COURT. Caso Damião Ximenes Lopes versus Brasil, 2006, 106 p. Available at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_149_por.pdf. 

IACHR COURT. Caso Nogueira de Carvalho e Outros versus Brasil, 2006, 37 p. 

Available at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_161_por.pdf. 

ECHEVERRIA, Andrea de Quadro Dantas; 

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MARINONI, Luis Guilherme Bittencourt et al. Código de Processo Civil Comentado. 07 ed. São Paulo: Revista dos Tribunais, 2020. 

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RUBIO, David Sánchez. Uma perspectiva crítica sobre democracia e direitos humanos.

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