access to justice as a guarantee of economic, social, and cultural rights.
a review of the standards adopted by the inter-american system of
III. ADMINISTRATIVE DUE PROCESS AND ASSURANCE OF SOCIAL RIGHTS
95. A second aspect to bear in mind with regard to access to justice and effective protection of economic, social and cultural rights is due process in administrative proceedings, in which the majority of decisions with respect to the award of social security benefits are made. Neither social policies nor the organization and workings of state social benefits have been guided by a rights-based approach. On the contrary, benefits are mainly organized and provided according to the inverse logic of the handout approach and for that reason, institutional controls notwithstanding, this area of activity of public administrations has traditionally been the preserve of the political discretion of the authorities.
96. The social functions of the state have expanded into in areas such as health, housing, education, labor, social security, consumption, or promotion of participation for disadvantaged social groups. However, that has not necessarily translated, technically speaking, into the creation of concrete rights. Very often, the State assumed these functions as a result of discretionary interventions or because of how it organized its activities, such as provision of public services, or design of targeted social plans or programs. The social and economic effects of those functions do not necessarily assign rights, whether of an individual or a collective nature. However, in theory and in practice it would be by no means impossible for enforceable rights to be created in these areas also, in such a way that service providers or public officials would be brought under the supervision of institutional, administrative, or policy oversight mechanisms on behalf of the persons entitled to such social benefits. There are no grounds for not recognizing, in the framework of social policy, the possibility to demand either civil rights, such as the right to equality and nondiscrimination or the right of access to information, or social rights that set frameworks and minimum standards for such policies. Indubitably a rights-based approach to the design of plans should lead to the inclusion of the basic standards of due process in the way in which they are institutionally engineered.
97. In this way, the IASHR has established its position on the observance of due process guarantees in administrative proceedings. Thus it has established the obligation for states to have clear rules governing the behavior of their agents in order to avoid inappropriate levels of discretionality in the administrative sphere that might encourage arbitrary or discriminatory practices. At the same time it has proceeded with the identification of certain standards of due process that should govern administrative proceedings, including, inter alia, reasonable time, the right to judicial review of administrative decisions, the right to an attorney, the right to a reasoned decision, and publicity of administrative proceedings.
A. Effectiveness of Due Process in Administrative Proceedings
98. In the framework of the inter-American system the applicability of the right to a fair trial in administrative proceedings on social rights is clear. Indeed, the provision that governs this guarantee expressly recognizes its applicability to any proceeding for the determination of rights and obligations of a civil, labor, fiscal, or any other nature.
99. The Inter-American Court has had occasion to underscore the full applicability of the right in administrative proceedings. It has ruled accordingly in its analysis of cases and situations that involve the rights of workers, migrants, and indigenous peoples. At the same time, it recently developed standards on the link between administrative due process and the right of access to public information in a case concerning protection of environment.
100. In the Baena Ricardo et al. Case, the petitioners were 270 government employees, who were dismissed after being accused of complicity in a military coup because they had participated in a demonstration for labor rights that coincided with an attempted military uprising. Initially, the dismissals were carried out by means of written communications, mostly issued by the Director General or Executive Director of the entity concerned, by order of the President of the Republic, based on their participation in the supposedly illegal measures of protest. Later, with the enactment of a special law to that end --“Law 25”, as it was called, which was applied retroactively-- the directors of the autonomous and semi-autonomous institutions, State and municipal enterprises, and other public agencies of the State were authorized to declare non subsistent, subject to a previous identification, the appointments of those public servants who took part “in the organization, convocation or implementation of actions that attempted against democracy and the constitutional order.” Based on their participation in the aforesaid measures of protest the appointments of the remaining workers were declared non subsistent. In this way, the dismissals were carried out in open violation of the rules governing the procedures to be observed for the dismissal of employees of these entities.
101. Under "Law 25" 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.
102. The workers attempted different remedies in various proceedings, including contentious administrative suits with the Third Chamber of the Supreme Court Justice, which ruled that the dismissals were legal under Law 25.
103. The violation of the workers’ rights led the Inter-American Court to outline standards on observance of due process guarantees in proceedings at the administrative level, which is where the dismissals occurred. In its judgment of February 2, 2001, the Inter-American Court noted the following with regard to the scope of Article 8 of the American Convention:
Although Article 8 of the American Convention is entitled “Right to a Fair Trial,” its application is not limited to judicial remedies in a strict sense, “but [to] all the requirements that must be observed in the procedural stages,”(This translator’s version of the quotation.) in order for all persons to be able to defend their rights adequately vis-à-vis any type of State action that could affect them. That is to say that the due process of law must be respected in any act or omission on the part of the State bodies in a proceeding, whether of a punitive administrative, or of a judicial nature. […] The Court makes the observation that the range of minimum guarantees established in section 2 of Article 8 of the Convention is applied to the realms to which reference is made in section 1 of the same Article, that is, “the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.” This reveals the broad scope of the due process; Te individual has the right to the due process as construed under the terms of Articles 8(1) and 8(2) in both, penal matters, as in all of these other domains. (Emphasis added)
104. With respect to administrative due process, the Inter-American Court held:
The right to obtain all the guarantees through which it may be possible to arrive at fair decisions is a human right, and the administration is not exempt from its duty to comply with it. The minimum guarantees must be observed in the administrative process and in any other procedure whose decisions may affect the rights of persons.
105. In conclusion, therefore, with respect to the facts in the case and the rights in dispute:
The general directors and the boards of directors of the State enterprises are not either judges or tribunals in a strict sense; however, in the instant case the decisions adopted by them affected rights of the workers, for which reason it was indispensable for said authorities to comply with what was stipulated in Article 8 of the Convention. […] The Court is not oblivious to the fact that the dismissals, made without the guarantees of Article 8 of the Convention, had serious social and economic consequences for the persons dismissed and their relatives and dependants, such as the loss of income and a reduction of the living pattern. There is no doubt that, in applying a sanction with such serious consequences, the State should have ensured to the worker a due process with the guarantees provided for in the American Convention. […] the Court concludes that the State violated Articles 8(1), 8(2), and 25 of the American Convention, to the detriment of the 270 workers…”
106. Thus, a case in which the rights at issue were workers rights (social rights par excellence) provided a clear example of the applicability of due process guarantees in administrative proceedings.
107. A few days later, the Inter-American Court issued its judgment in the Case of Ivcher Bronstein. Mr. Ivcher Bronstein, a naturalized Peruvian citizen, was the majority shareholder, director and president of a Peruvian television network, which denounced violations of human rights perpetrated by members of the Army Intelligence Service, as well as acts of corruption reputedly committed by officers of the National Intelligence Service.
108. On May 23, 1997, the Joint Chiefs of Staff of Peru issued an official communiqué denouncing Mr. Ivcher for conducting a defamatory campaign of libel with the aim of tarnishing the good name of the Armed Forces. The same day, the Peruvian Executive issued a decree that regulated the Nationality Law and established the possibility of canceling the citizenship of naturalized Peruvians. On July 10, 1997, the Migration and Naturalization Directorate issued a report that stated that the file that supported Mr. Ivcher’s citizenship had not been found in the Directorate’s archives and there was no evidence that he had renounced his Israeli nationality. On July 11, 1997, a “Directorial Resolution” signed by the Director General of Migration and Naturalization was issued, annulling Mr. Ivcher Bronstein’s citizenship. The Migration and Naturalization Directorate did not contact Mr. Ivcher before issuing the "directorial resolution" which annulled his citizenship, so that he might submit his opinion or any evidence he might possess. Faced with this situation, Mr. Ivcher Bronstein attempted a number of remedies in a succession of different proceedings, all to no avail.
109. After analyzing the case, the Inter-American Court concluded that the Peruvian State arbitrarily deprived Mr. Ivcher of his citizenship, and therefore violated his rights to nationality and a fair trial. Thus, in the opinion of the Court, the administrative procedure by which the State deprived Mr. Ivcher Bronstein of his citizenship infringed the rights recognized in Articles 8(1) and 8(2) of the American Convention.
110. This case is examined in further detail later in this report; however, it is timely to cite here what the Inter-American Court found with respect to the applicability of the right to due process guarantees in administrative proceedings. Thus, the Court held that:
[A]lthough Article 8(1) of the Convention alludes to the right of every person to a hearing by a “competent tribunal” for the “determination of his rights”, this article is also applicable in situations in which a public rather than a judicial authority issues resolutions that affect the determination of such rights. (Emphasis added)
111. More recently, the Court had another opportunity to express itself in this regard. In the Case of the Indigenous Community Sawhoyamaxa it was again necessary for the Inter-American Court to draw attention to the need to ensure the right to effective judicial protection in claims on indigenous ancestral lands. In that case it was alleged that the Paraguayan State had not ensured the ancestral property rights of the Sawhoyamaxa Community and its members, inasmuch as their claim for territorial rights had been pending since 1991 and it had not been satisfactorily resolved. This had barred the community and its members from title to and possession of their lands, and implied keeping them in a state of nutritional, medical and health vulnerability, which constantly threatened their survival and integrity. The Court had to examine a series of administrative proceedings on recognition of community rights. The Inter-American Court ruled in the case that there had been a violation of Article 8 of the American Convention and found:
In the instant case, the Court has been requested to rule on the alleged violations of the rights prescribed in the above mentioned Articles in four proceedings conducted before domestic authorities, to wit: i) proceedings for recognition of leaders; ii) proceedings for recognition of legal capacity; iii) injunctions, and iv) land claim proceedings. […] Therefore, in this Chapter, the Court will analyze whether said proceedings were conducted with respect for the right to a fair trial and within a reasonable time, as well as whether they were an effective remedy to ensure the rights of the petitioners. To that effect, the Court recalls that the due process of the law guarantee must be observed in the administrative process and in any other procedure whose decisions may affect the rights of persons.” (Emphasis added)
112. In another recent judgment, the Court reaffirmed the aforementioned position. The case in question was that of Claude Reyes et al. v. Chile, in which the Court had to decide the scope of the right of access to public information.
113. Claude Reyes, as Executive Director of a nongovernmental organization that specializes in the analysis of investments connected with the use of natural resources, submitted a request for information to the Foreign Investment Committee of Chile. His intention was to obtain information on a forestry exploitation project with potential environmental impact. Said Committee refused to provide part of the information requested without justifying said refusal in writing. The victims attempted remedies in a series of judicial proceedings so that the Committee might be ordered to respond to the request for information and place it at their disposal within a reasonable time. None of the remedies were successful.
114. While this report examines this recent judgment of the Court in more detail below in the analysis of the components of due process of law in administrative proceedings identified by the IASHR, it is relevant to note here that that the Court ruled that:
Article 8(1) of the Convention does not apply merely to judges and judicial courts. The guarantees established in this provision must be observed during the different procedures in which State entities adopt decisions that determine the rights of the individual, because the State also empowers administrative authorities, comprising one or more authorities to adopt decisions that determine rights (Emphasis added)
115. The standards established and consistently confirmed in the different cases outlined hereinabove, denote the broad scope that the Inter-American Court believes should be accorded to observance of the guarantee of due process of law, which underscores the full applicability of said guarantee in administrative proceedings.
116. By the same token, it should also be mentioned that the IACHR has also consistently stressed the need to ensure the right to a fair trial in all proceedings to decide rights and obligations, expressly mentioning administrative proceedings in that regard. In fact, the IACHR addressed the issue before the Court had its first opportunity to do so in the Baena Ricardo et al. Case.
117. In April 1999, in its report on merits in the Case of Loren Riebe et al., the IACHR examined the scope of the right to a fair trial and highlighted the need for it to be observed and ensured in administrative proceedings.
118. The priests Loren Riebe Star, Jorge Barón Guttlein, and Rodolfo Izal Elorz were representatives of the Catholic diocese of San Cristóbal de las Casas in the state of Chiapas, Mexico. On June 22, 1995, the three priests were taken by force to Tuxtla Gutiérrez Airport, from where they were flown in a government plane to Mexico City airport, where they were subjected to a political interrogation by Mexican immigration officers. The Mexican authorities told the priests that they were not entitled to: assistance from a lawyer; to be informed of the charges against them, the evidence adduced, or the names of their accusers; or to any form of defense. Finally, the authorities said that the three priests would be expelled “for engaging in activities not permitted under the terms of their visas.” The three priests were later escorted by immigration officers and put on a plane bound for the United States. It was only on their arrival in that country that they received a notification from the Mexican Ministry of the Interior, explaining why they had been deported and the charges against them by the Mexican immigration authorities.
119. In its decision on this case, the IACHR recognized the need to adopt standards in the area of administrative procedures. To that end, it decided to turn to the case law already developed in this area in the framework of the European system of human rights, by constitutional courts, and by specialized doctrine. Thus, the IACHR observed:
The European Commission on Human Rights has established, in general, that the rights to a fair trial and to defense are applicable to administrative proceedings and investigations […] As regards the extent of the guarantees of due legal process to be observed in administrative proceedings, the Commission notes a consensus in the jurisprudence of several countries. For example, the Constitutional Court of Colombia has established that “any administrative act shall be the result of a proceeding in which the person had an opportunity to express his opinions and present any evidence in support of his rights, and which fully observes all procedural requirements […] No less interesting is jurist Agustín Gordillo’s view on this matter: ‘The principle of hearing the interested party prior to deciding anything that may affect him is not only a principle of justice but also a principle of efficacy, because it undoubtedly ensures a better understanding of the facts and therefore contributes to better administration, as well as to a more just decision.’
120. Accordingly, having examined the case through the lens of precedents such as the aforementioned, the IACHR concluded that:
[T]he State should have determined the fundamental rights of the accused priests, and that the consequences of an adverse decision–such as that which ultimately resulted-warrant a reasonable interpretation, as broad as possible, of the right to due process. Therefore, bearing in mind the standards for interpretation of the American Convention, the IACHR considers that this right should have included the opportunity to be assisted by a lawyer if the accused parties had so wished, or by a representative in whom they had confidence, during the administrative proceeding that was held on the night of June 22, 1995, and in the early hours of the following day at Mexico City airport. […] The Commission establishes that the Mexican State denied Fathers Loren Riebe Star, Jorge Barón Guttlein, and Rodolfo Izal Elorz the right to a hearing in order to determine their rights. This guarantee should have included the right to be assisted during the administrative sanction proceedings; to practice their right of defense, with enough time to ascertain the charges against them and hence to refute them; to have a reasonable time in which to prepare and formalize their statements; and to seek and adduce the corresponding evidence. Thus the IACHR concludes that the aforementioned State violated said persons’ right to judicial protection, in breach of Article 8 of the American Convention. (Emphasis added)
121. The IACHR reiterated its position in this regard in its arguments to the Inter-American Court in the above-cited Case of Baena, Ricardo et al.:
Concerning Article 8 of the Convention, the Commission argued that: a) it is not possible to construe the due process as being limited to judicial actions; it must be guaranteed in all proceedings or actions of the State that may affect the rights and interests of individuals; […] the administration must act according to legality and the general principles of rationality, reasonableness, and proportionality, permitting those who are the objects of administrative actions to exercise their right to defense. (Emphasis added)
122. For its part, the Special Rapporteurship on Migrant Workers and Their Families also established standards on the scope of the right to a fair trial. Thus, in April 2001, in its Second Progress Report, it expressed its opinion on the link between the rights of migrant workers and due process of law in administrative proceedings as follows:
In any non-criminal proceedings against a migrant worker, a certain quantum of due process must also be respected […] whenever effective enjoyment of a right or a legitimate interest is at stake, the authorities should decide the case only after the interested party has been duly heard […] The principle of due process, with this degree of flexibility, applies not only to court decisions, but also to decisions made by administrative bodies.
123. The standards outlined here reflect the position adopted by the IASHR on the applicability of the right to a fair trial in administrative proceedings. As shown, both the IACHR and the I. A. Court of H.R. have confirmed the full applicability of this right in that context. It is worth noting that the cases and reports cited on this first point are a mere sample of the framework that will be erected as the precise scope that the IASHR has recognized to administrative due process is defined.
B. Limits of the Discretionary Authority of the State
124. Social rights are without doubts the rights most vulnerable to arbitrary administrative decisions, as the State tends to exercise a greater margin of discretion in determining many of the benefits that are the object of such decisions. In the face of this situation, in various decisions the IASHR has pronounced in favor of the need to limit and condition so-called state discretionality.
125. In the above-cited Baena Ricardo et al. Case, the Inter-American Court held emphatically that:
In any subject matter, even in labor and administrative matters, the discretionality of the administration has boundaries that may not be surpassed, one such boundary being respect for human rights. It is important for the conduct of the administration to be regulated and it may not invoke public order to reduce discretionally the guarantees of its subjects. (Emphasis added)
126. The Court held a similar opinion in an important case that concerned the right to social security. In the Case of the "Five Pensioners". In said case the matter at issue was the reduction in the amount of the pension benefits of five pensioners who had served in the public administration of Peru, as well as a failure to abide by court decisions that ordered the payment of those benefits in accordance with the original rules for their calculation.
127. The victims had retired after serving in the Public Administration for more than 20 years. To be specific, they worked in the Superintendency of Banking and Insurance (SBS). According to the law in force upon their retirement, the State recognized the victims’ right to a retirement pension, progressively equalized with the salary “of the active public servants in the respective categories”, who occupied the same position or a similar function to that occupied by the pensioners when they ceased to work for the SBS. These pensioners were enjoying this pension scheme when the SBS reduced their pension benefits to one-fifth or one-sixth of their nominal value, depending on the person concerned. Furthermore, the SBS later disregarded the judgments of the Supreme Court of Justice and the Constitutional Court of Peru “that ordered the organs of the Peruvian State to pay the pensioners a pension in an amount calculated as established in the legislation in force when they began to enjoy a determined pension regime.”
128. In this framework, the Court referred again to the limits to which the decisions of the administration should be subject and their connection with the right to a fair trial. Accordingly, in its judgment of February 28, 2003, the Court ruled that:
instead of acting arbitrarily, if the State wished to give another interpretation to Decree Law No. 20530 and its related norms, in relation to the five pensioners, it should have: a) executed an administrative procedure with full respect for the appropriate guarantees; and b) in any event, given precedence to the decisions of the courts of justice over the administrative decisions.
129. In turn, the Case of the Girls Yean and Bosico, clearly highlighted the need to establish limits and rules for the Administration to observe. According both to the application of IACHR and to the judgment of the Court in this case, it was imperative to restrict the discretionary authority of the State in light of the discriminatory practices to which children of Haitians born in that country were subjected by the Dominican administration when they attempted late registration of their births.
130. Specifically, the Dominican State, through its Registry Office authorities, refused to issue birth certificates for the girls Dilcia Yean and Violeta Bosico, even though they were born within the State’s territory and the Constitution of the Dominican Republic recognizes the principle of ius soli to determine those who have a right to Dominican citizenship. The Commission indicated that by keeping them stateless for several years, the State obliged the girls to endure a situation of continued illegality and social vulnerability, and violated their right to nationality. In the case of child Violeta Bosico this situation also impaired an essential social right (the right to education) since she was unable to attend school for one year because she lacked an identity document.
131. The absence of a mechanism or procedure for judicial review of Registry Office decisions, as well as the discriminatory actions of Registry Office officials who did not permit the girls to obtain their birth certificates, prompted the IACHR and the Inter-American Court to underscore that administrative proceedings should as a matter of necessity be conducted according to clear and objective rules that tend to restrict the exercise of discretionary authority in order to avoid any violation of the prohibition of discrimination. In this way, the Court found as follows:
The Court considers that the peremptory legal principle of the equal and effective protection of the law and non-discrimination determines that, when regulating mechanisms for granting nationality, States must abstain from producing regulations that are discriminatory or have discriminatory effects on certain groups of population when exercising their rights. […] The Court considers that, by applying to the children requirements that differed from those requisite for children under 13 years of age in order to obtain nationality, the State acted arbitrarily, without using reasonable and objective criteria, and in a way that was contrary to the superior interest of the child, which constitutes discriminatory treatment to the detriment of the children Dilcia Yean and Violeta Bosico. This situation placed them outside the State’s juridical system and kept them stateless, which placed them in a situation of extreme vulnerability, as regards the exercise and enjoyment of their rights […] In accordance with the obligation arising from Article 2 of the American Convention, the Court considers that the requirements for obtaining nationality must be clearly and objectively established previously by the competent authority. Likewise, the law should not provide the State officials applying it with broad discretionary powers, because this creates opportunities for discriminatory acts. (Emphasis added)
132. Thus, in this case the IASHR recognized an important link between the scope of administrative due process and the protection of a fundamental principle of the system: the prohibition of discrimination. Accordingly, in the part on reparations, the judgment of the Inter-American Court reads as follows:
The Court finds that, when establishing the requirements for late registration of birth, the State should take into consideration the particularly vulnerable situation of Dominican children of Haitian origin. The requirements should not constitute an obstacle for obtaining Dominican nationality and should be only those essential for establishing that the birth occurred in the Dominican Republic. […] Moreover, the requirements should be specified clearly and be standardized, and their application should not be left to the discretion of State officials, in order to guarantee the legal certainty of those who use this procedure and to ensure an effective guarantee of the rights embodied in the American Convention, pursuant to Article 1(1) of the Convention […] The Court also finds that the State should implement, within a reasonable time, a program to provide training on human rights, with special emphasis on the right to equal protection and non-discrimination, to the State officials responsible for registering births, during which they should receive guidance on the special situation of children, and a culture of tolerance and non-discrimination is fostered. (Emphasis added)
133. In addition to the Case of the Girls Yean and Bosico v. Dominican Republic, the Inter-American Court also had occasion to state its opinion on the need to impose limits on administrative decisions that affect particularly vulnerable sectors, in Advisory Opinions OC-17/2002, Juridical Condition and Human Rights of the Child and OC-18/03, Juridical Condition and Rights of the Undocumented Migrants. In the first of these advisory opinions, the Inter-American Court held:
Finally, it is appropriate to point out that there are children exposed to grave risk or harm who cannot fend for themselves, solve the problems that they suffer or adequately channel their own lives, whether because they absolutely lack a favorable family environment, supportive of their development, or because they have insufficient education, suffer health problems or have deviant behavior that requires careful and timely intervention […] by well-prepared institutions and qualified staff to solve those problems or allay their consequences […]Obviously, these children are not immediately deprived of rights and withdrawn from relations with their parents or guardians and from their authority. They do not pass into the “dominion” of the authorities, in such a manner that the latter, disregarding legal procedures and guarantees that preserve the rights and interests of the minor, take over responsibility for the case and full authority over the former. Under all circumstances, the substantive and procedural rights of the child remain safeguarded. Any action that affects them must be perfectly justified according to the law, it must be reasonable and relevant in substantive and formal terms, it must address the best interests of the child and abide by procedures and guarantees that at all times enable verification of its suitability and legitimacy. (Emphasis added)
134. In Advisory Opinion OC-18/03 the Court found that:
…States may not discriminate or tolerate discriminatory situations that prejudice migrants. However, the State may grant a distinct treatment to documented migrants with respect to undocumented migrants, or between migrants and nationals, provided that this differential treatment is reasonable, objective, and proportionate and does not harm human rights. […] States may also establish mechanisms to control the entry into and departure from their territory of undocumented migrants, which must always be applied with strict regard for the guarantees of due process and respect for human dignity.
135. Finally, it is worth drawing attention in this respect to a recent case in which the IACHR referred in particular to the limits of the discretionary authority of the State.
136. In the Case of Eduardo Perales Martínez, the petitioner presented a complaint to the IACHR against the Republic of Chile for alleged violation of the rights to a fair trial (Article 8), freedom of thought and expression (Article 13) and judicial protection (Article 25), together with violation of the obligation to respect rights (Article 1(1)), contained in the American Convention on Human Rights. These alleged violations were caused by to the petitioner’s dismissal from the national militarized police force of Chile (The Carabineros) in 1998, for having made a joke critical of the institution. Mr. Perales Martínez complained to the IACHR that the Director of the Carabineros, without permitting him a fair trial to determine his guilt, asked the President of Chile to order Captain Perales’ dismissal. As a result, Supreme Decree 304 of June 3, 1998, issued by the Ministry of Defense, ordered the officer’s immediate retirement, terminating a professional career of 13 years in the police force. With respect to the topic under discussion here, in its report on admissibility in the case, the IACHR noted the following:
The petitioner argues that he was denied due process: he had no access to any procedure that would allow him to be heard before an appropriate and impartial judge. His punishment was applied by a subordinate of the General Director of Carabineros, exercising a power not conferred upon him by law. The petitioner also claims violation of the right to administrative due process […] The Commission finds that the facts of the case raise important questions about the limits of discretionary power in a State governed by the rule of law, and in relation to the American Convention. In particular, the Commission will examine, during the merits stage, whether the standard established by the Convention would accord validity to a purely discretionary decision taken by the Chilean President, at the proposal of the General Director of the Carabineros, to dismiss a police officer, if such dismissal affects individual rights recognized in the American Convention and in the Chilean Constitution. Is a police officer entitled to due process in a disciplinary administrative procedure established by law, and does he have the right to defend himself against the charges presented? If the answer is affirmative, what are the guarantees required for due process? In addition, what purpose is served by guarantees of due process for the accused if the final decision on his dismissal can be taken by the President on purely discretionary ground? While the Commission recognizes that states have the jurisdiction to exercise certain discretionary powers in the course of government decisions and policies (for example, the appointment and removal of senior political figures such as cabinet ministers), the Commission must in this case determine whether, in light of the American Convention, those discretionary powers can be invoked in situations that involve the exercise of individual rights. […] In this light, the Commission finds that the matter at issue could characterize violations of Articles 8, 13 and 25 of the American Convention. (Emphasis added)
137. The judgments, advisory opinions, and reports summarized here show how the IASHR has evolved in terms of setting standards for the adoption of rules and guidelines on the actions or of government authorities and recognition of the right to a fair trial in administrative proceedings.
c. Elements that Comprise Due Process of Law in Administrative Proceedings
138. Having clarified the position of the IASHR with regard to the applicability of due process of law in administrative proceedings, it is appropriate to specify the substance that the IACHR and the Inter-American Court believe that this guarantee should have; in other words, the various elements that said organs have progressively identified as core components.
1. The Guarantee of a Hearing for the Determination of Rights. The Right to Legal Representation
139. In its report on merits in the above-cited Case of Loren Riebe et al., the IACHR found that the State denied the victims the guarantee of a hearing for the determination of their rights.
140. In the opinion of the Inter-American Commission, said guarantee should have included: a) the right to be assisted during the punitive administrative proceeding; b) the right to exercise their right of defense, with enough time to ascertain the charges against them and hence to refute them; and, c) the right to a reasonable time in which to prepare and formalize their arguments, and to seek and adduce the corresponding evidence.
141. Having determined that said rights were not ensured in the case, the IACHR concluded that the Mexican State violated the right of the priests to a fair trial, in contravention of Article 8 of the American Convention.
142. Specifically with regard to violation of the right to legal assistance during the administrative proceeding, the IACHR mentioned the following in its report:
The Commission concluded above that the Mexican State should have guaranteed the petitioners’ right to be represented during the administrative proceedings. That conclusion is based not just on the right to a hearing in the context of the instant case, but also from the point of view of effective judicial protection. […] The lack of a lawyer the priests could trust is relevant when it comes to analyzing judicial protection, because a professional of that kind could have counseled his clients regarding their right to file a writ of amparo immediately, in order to preempt consummation of the violations set forth above. […] [T]he reason for the presence of an attorney in the hearing is the legal counsel such professional could have been able to provide his or her clients, in the face of the imminence of a decision that was going to affect their fundamental rights. For example, an attorney who is a person of confidence could have explained to the priests the “simplicity and rapidity” of the rules on amparo described by the State in its response to Report Nº 41/98, which would have enabled them to file it before the situation of violations described in this report had been consummated. (Emphasis added)
143. Accordingly, the IACHR concluded in the case that the right to judicial protection recognized in Article 25 of the American Convention had also being violated.
144. The decision of the IACHR in the case demonstrates the significance of the specific rights violated and their nature as component elements of due process of law in administrative proceedings.
2. Prior Notification of Charges
145. In presenting its arguments on merits in the Case of Ivcher Bronstein the IACHR proceeded with its identification of the elements that comprise the right to a fair trial in administrative proceedings. Accordingly, the Commission determined, based on the following arguments, that Mr. Ivcher Bronstein had been arbitrarily deprived of his citizenship and that there had been a violation of Article 8 of the American Convention in the case:
With regard to Article 8 of the Convention, the Commission alleges that […] c) Mr. Ivcher’s was deprived of his nationality title arbitrarily. When the resolution that annulled this title was issued, Mr. Ivcher was never summonsed, he did not received any prior detailed communication on the matter being examined by the authorities, with information on the corresponding charges, he was not informed that the nationalization file had been mislaid, he was not asked to submit copies in order to reconstruct it, nor was he allowed to present witnesses to support his position; in brief, he was not allowed to exercise the right of defense. (Emphasis added)
146. In this way, the IACHR highlighted the importance of prior notification of charges in order to safeguard due process guarantees and identified it as an essential component of the right to a fair trial.
147. It is also appropriate to mention the Case of Elías Gattass Sahih in which it was alleged that due process guarantees had been violated in an administrative proceeding in which the petitioner had his immigrant visa revoked. The Commission declared the petition admissible inasmuch as it believed that it “address[ed] a number of issues related to the right of foreign citizens to the legal guarantees of due process in the procedures to revoke their migratory status.” Accordingly, the Commission considered that the facts alleged in the case could constitute a violation of Article 8 of the American Convention. Insofar as it is relevant here, it should be mentioned to that among the elements that the IACHR took into account in reaching that conclusion was the precise fact that Mr. Gattass Sahih was not notified of the administrative action against him.
3. The Right to a Reasoned Decision
148. Another element that the IASHR considers important, based on its analysis of the scope of administrative due process, is the right to a reasoned decision.
149. In the above-cited Case of Claude Reyes et al., the Inter-American Court was emphatic as regards the need for the Administration to cite the reasons for its decisions and make them available to the persons under its supervision. In the case, the State authority refused satisfactorily to resolve a request for information without providing proper justification for that refusal in a written decision. This situation led the Court to conclude that the Administration had acted arbitrarily and, therefore, violated the American Convention. Specifically, the Court found that:
In this case, the State’s administrative authority responsible for taking a decision on the request for information did not adopt a duly justified written decision, which would have provided information regarding the reasons and norms on which he based his decision not to disclose part of the information in this specific case and established whether this restriction was compatible with the parameters embodied in the Convention. Hence, this decision was arbitrary and did not comply with the guarantee that it should be duly justified protected by Article 8(1) of the Convention. […] In view of the above, the Court concludes that the said decision of the administrative authority violated the right to judicial guarantees embodied in Article 8(1) of the Convention, in relation to Article 1(1) thereof… (Emphasis Added)
150. For its part, the IACHR has also determined in cases that it has examined that state authorities have a duty to justify and disclose their decisions.
151. It concluded as much recently in a case in which it found it necessary, moreover, to apply the principle of iura novit curia in declaring the petition admissible under Article 8 of the American Convention. The alleged victims in the case are members of the Chilean security forces who say that they were dismissed from the national militarized police force of Chile (The Carabineros) due to their alleged participation in a demonstration over the distribution of an additional economic benefit that they considered as unequal. In the petition, the alleged victims claimed that they did not have access to the files, nor did they participate at all in the process and, as a result of the impossibility of producing and challenging evidence, they were unable to avail themselves properly of the right to defense in administrative proceedings. They also said that they were discharged from the force without any basis, without due process, and without the grounds for the evaluation leading to discharge having been set forth in writing. Faced with this situation, the IACHR noted:
Accordingly, and although they have not been invoked by the petitioners, applying the principle iura novit curia, the Inter-American Commission considers that the facts described constitute violations of the right to a fair trial and the right to judicial protection, protected by Articles 8 and 25 of the American Convention. In addition, the Commission considers that they could constitute violations of the State’s obligations under Articles 1(1) and 2 of the American Convention.
152. Similarly, in the Case of Roger Herminio Salas Gamboa, the petitioner alleged violation of Article 8 of the American Convention based on the refusal of the National Council of the Magistracy to provide a basis for its decision or to inform the judges under review of the results of said review. In this case, the violations claimed concerned irregularities allegedly committed by the National Council of the Magistracy in its decision not to ratify his appointment as a full judge of the Supreme Court of Justice of the Republic. Mr. Salas Gamboa argues that the decisions of the National Council of the Magistracy are arbitrary because no basis is given for them, nor are the judges under review informed of the factors that were taken into account in reaching the decision. In this framework, the IACHR decided to declare the case admissible, finding that the allegations could constitute a violation of Article 8 of the American Convention on Human Rights.
4. Publicity of Administrative Proceedings
153. The IASHR has also expressed its position on the need to ensure publicity of administrative proceedings. In this connection, in its "Report on Terrorism and Human Rights," the IACHR made clear its position in favor of publicity of administrative proceedings:
An additional aspect of the right to access to information is “a presumption that all meetings of governing bodies are open to the public.” This presumption is applicable to any meeting in which decision-making powers are exercised, including administrative proceedings, court hearings, and legislative proceedings. Any limitations on openness of meetings should be subject to the same requirements as the withholding of information.
154. Similarly, in the Case of Claude Reyes et al., the Inter-American Court urged the adoption of measures necessary to ensure access to information in the possession of the State. Specifically, it found that such measures should include the due guarantees recognized in American Convention. Thus, it noted in its judgment that, in order to comply with the obligation contained in Article 2 of the American Convention, Chile should take the necessary measures to guarantee the protection of the right of access to State-held information, and these should include a guarantee of the effectiveness of an appropriate administrative procedure for processing and deciding requests for information, which establishes time limits for taking a decision and providing information, and which is administered by duly trained officials.
155. The foregoing shows the importance that the IASHR attaches to the guarantee of publicity of administrative proceedings, which, in its opinion, should be considered one of the elements of legal due process.
5. The Principle of a Reasonable Time in Administrative Proceedings
156. Another element considered to play a central role with regard to the guarantee of due process of law in administrative proceedings is the right to a reasonable time. Thus, it should be noted that in some circumstances the design and operation of mechanisms for the determination of rights have a direct effect on those rights. Hence the importance of ensuring the guarantee of “reasonable time” in proceedings to determine obligations in the area of economic and social rights, since excessively lengthy proceedings could obviously cause irreparable harm to the exercise of these rights, in which, as we know, urgency is the prime consideration, forcing the weaker party to reach a compromise or capitulate on the integrity of their claim.
157. Both the IACHR and the Inter-American Court have identified the connection between due process of law in administrative proceedings and the right to a reasonable time therein.
158. The Commission referred precisely to that connection in its application in the Case of the Indigenous Community Yakye Axa of the Enxet-Lengua People v. The Republic of Paraguay. On that occasion, the IACHR alleged that the Paraguayan State had not ensured the right of the Yakye Axa indigenous community and its members to their ancestral lands since the processing of the claim for the community’s land had been going on since 1993 without a satisfactory solution. This situation meant that it was impossible for the community and its members to enjoy ownership and possession of their land and kept them in a state of vulnerability as regards their food and health, posing a continuous threat to the survival of the community’s member as well as the integrity of the community itself. The IACHR has observed the following specifically with respect to the duration of the administrative procedures instituted by the community to claim their ancestral territory:
3.1. Steps taken before administrative authorities. a. Request for recognition of the leaders and legal identity of the Yakye Axa Indigenous Community […] Regarding this point, the Commission notes that the formalities for recognizing the Community’s leaders and legal identity took between three and five years to be resolved; under the applicable Paraguayan laws, they should have been settled in a matter of months. […] In the case at hand, in 1993 the leaders of the Yakye Axa Indigenous Community of the Enxet-Lengua peoples, in compliance with the administrative procedure established for the purpose in Paraguay’s domestic laws, began proceedings to recover their ancestral territory. During the years that the processing of the request has been ongoing, a series of procedures have been pursued by the responsible administrative bodies – the INDI and the IBR – which, by law, must provide conclusive solutions for the requests lodged with them. Moreover, the executive itself asked the legislature to expropriate a part of the ancestral lands claimed by Indigenous Community, although the request was dismissed by the National Congress of Paraguay. More than ten years have passed since the Community began these proceedings, and to date their right of property has not been effectively upheld. […]The administrative remedy provided for resolving the Yakye Axa Indigenous Community’s claim, under the procedure set forth in the Indigenous Communities Statute, has not proved effective for settling the Community’s demands. (Emphasis added)
159. In line with the foregoing, when it fell to the Court to render its decision, it drew particular attention to the violation of the principle of reasonable time in the case and, consequently, of the right to a fair trial generally. The Court observed the following:
The Court has noted that on August 15, 1993, the members of the Yakye Axa Community requested that INDI recognize Messrs. Tomás Galeano and Esteban López as community leaders and that it register the community in the National Register of Indigenous Communities […] The President of INDI’s Board of Directors did not issue a resolution approving said request until September 18, 1996. […] The period of three years, one month and three days that was taken to decide a request of minimal complexity, for which the legal time limit is 30 days, disregards the principle of reasonable time. […] The Court has found that the formalities for recognition of the legal identity of the Yakye Axa Community were initiated with INDI on May 21, 1998. […] The decree recognizing the legal identity of the Community was issued on December 10, 2001, that is, three years, six months and 19 days afterward. […] The Court finds that the complexity of this procedure was minimal and that the State has not justified the aforementioned delay, for which reason the Court considers it disproportionate. […] The Court considers that a prolonged a delay, such as the one that has occurred in this case, in itself constitutes, in principle, a violation of the right to a fair trial. The lack of reasonableness, however, may be refuted by the State if it can show that the delay was directly connected with the complexity of the case or with the conduct of the parties therein. […] However, the Court finds that the delays in the administrative proceeding examined in this judgment were not caused by the complexity of the case but by proceedings that were systematically delayed by the State authorities. (Emphasis added)
160. It is interesting to note the standard that the Inter-American Court adopts in the case. The Court holds that a prolonged delay in an administrative proceeding constitutes, in principle, a violation of Article 8 of the American Convention on Human Rights and that to refute such a conclusion, the State must duly demonstrate that the sluggishness of the process stemmed from the complexity of the case or the conduct of the parties therein.
161. The IACHR and the Court also examined the violation of the principle of reasonable time in the above-cited Case of the Indigenous Community Sawhoyamaxa. The Commission considered in that regard that:
In the present case, adhering to the administrative procedure provided for that purpose under Paraguay’s domestic law, in 1991 the leaders of the Sawhoyamaxa Community filed a claim to recover a portion of their ancestral territory. Since 1991, the government agencies in charge of processing that application –namely, the INDI and the IBR- have carried out various measures in processing the application. As explained above, under Paraguayan law these two agencies are required to find permanent solutions to the applications filed with them. However, more than 13 years have passed since the required formalities were instituted, yet the Sawhoyamaxa Community’s right to ownership of its ancestral territory has not been effectively protected. […] Under Articles 25 and 8(1) of the Convention and the provisions of ILO Convention No. 169, the Paraguayan State has an obligation to provide the Indigenous Community with an effective and efficient recourse to settle its land claim, a duty to ensure that the Community will be given a hearing, with due guarantees, and a duty to arrive at a decision within a reasonable period of time to guarantee the rights and obligations submitted to its jurisdiction. […]The Commission observes that the Paraguayan State did not guarantee an effective and efficient recourse to respond to the Sawhoyamaxa Community’s claims to ancestral territory, thereby denying them a hearing, with due guarantees. The Commission therefore considers that the Paraguayan State violated Articles 8 and 25 of the Convention, to the detriment of the Sawhoyamaxa Indigenous Community and its members (Emphasis added)
162. In turn, the Court ruled,
The Community alleged that the State has not ensured the ancestral property right of the Sawhoyamaxa Community and its members, inasmuch as their claim for territorial rights is pending since 1991 and it has not been satisfactorily resolved to date. As stated in the Commission’s application, this has barred the Community and its members from title to and possession of their lands, and has implied keeping it in a state of nutritional, medical and health vulnerability, which constantly threatens their survival and integrity. […] The Court has ascertained that a petition for recognition of what in Paraguay is known as “legal personality” of the Sawhoyamaxa Community was filed with the INDI on September 7, 1993 […] and that the Executive Order recognizing said personality was issued on July 21, 1998, that is to say, four years, ten months and fourteen days later. […]The foregoing being considered, and taking into account that said proceedings are not complex and that the State has not justified said delay, the Court deems it to be out of proportion and a violation of the right to be heard in a reasonable time as provided for in Article 8(1) of the American Convention. (Emphasis added)
163. Finally, it is apt to mention that in the case of Loren Laroye Riebe Star, Jorge Barón Guttlein, and Rodolfo Izal Elorz v. Mexico, the Commission had already referred to the implicit nature of the principle of reasonable time, although not, on this occasion, to underscore the existence of an unwarranted delay but to draw attention to the unreasonable brevity of the administrative proceeding that the three priests underwent. The IACHR found,
It is quite clear that the three priests were not given the opportunity to prepare their defense, formulate their claims and submit evidence, taking into consideration the unreasonably short time in which the government’s decision was carried out and the distance between where they were and their place of permanent residence in the State of Chiapas, where the witnesses or documents they might have produced in their defense were located. […] Based on the aforementioned analysis, the IACHR considers that in those proceedings, the authorities did not comply with the explicit requirements of Mexican law, the jurisprudence established by that country’s legal authorities and the American Convention, to protect the right to a hearing enshrined in Article 14 of the Mexican Constitution, which is compatible with Article 8 of the American Convention and with other international human rights instruments.
6. The Right to Judicial Review of Administrative Decisions
164. One final element of the right to a fair trial in administrative proceedings that has been accepted and developed in the framework of the IASHR is the right to judicial review of administrative decisions. In this connection, it should be noted that the absence of adequate judicial mechanisms for the comprehensive review of administrative decisions also has a direct impact on the observance of social rights inasmuch as many of these rights depend on administrative decisions.
165. The standards established in the above-cited Case of the Girls Yean and Bosico, are illustrative in this respect. Both in its application and in its arguments to the Court, the IACHR gave particular attention to the impossibility for the victims to appeal the decisions of the Dominican Registry Office that refused them the possibility of late registration of their births. In its initial brief to the Court, the IACHR explained that,
Under Dominican law, two procedural avenues –one administrative and the other judicial- are pursued to have Civil Registry decisions on late declarations reviewed. The administrative avenue is the review that the District Attorney does of Civil Registry decisions, which can also be reviewed by the JCE. The second avenue is review by the court of first instance. The Commission believes that the two avenues are contradictory and inadequate, as neither avenue for review of a Civil Registry decision is an appeals procedure consistent with Article 8 of the Convention. The mothers of Dilcia and Violeta tried to register their daughters’ births, but the Civil Registry officials turned down their applications; and despite the petitioners’ efforts, their requests were never reviewed by a competent court. […] Having examined the documentation offered during the Commission’s proceedings on the case, it has concluded that the domestic laws contain no legal provision permitting a private individual to appeal a decision that the District Attorney adopts under Article 41 (in force) with the court of first instance, since under Law 659 on Civil Records, the District Attorney is to present late declarations to the court of first instance, which did not happen in the instant case. […] The procedure that Article 41 of Law 659 establishes specifies the stages that the authorities must follow assuming the requirements set by the JCE are present; however, neither this article nor any other describes how applicants should access the courts directly and independently, should they wish to challenge the District Attorney’s decision to deny their request. The Commission, therefore, considers that Law 659 offers no recourse to access a court of law for a review and, where appropriate, correction of administrative officials’ acts.
166. Faced with this situation, the IACHR noted that the regulations in force in the Dominican Republic denied Violeta, Dilcia and their mothers access to a judicial recourse that would enable them to challenge the administrative authorities’ refusal to agree to late registration, and thus obtain judicial protection of their fundamental rights. The Commission observed that it follows from Article 8(1) of the American Convention, which recognizes the right of access to justice, that States are not to obstruct persons who turn to the courts or judges to have their rights determined or protected. Any domestic law or measure that imposes costs or in any way obstructs individuals’ access to the courts and is not justified by what is reasonably needed for the administration of justice is understood to be contrary to Article 8(1) of the Convention. Therefore, it concluded that the rule that holds that only the District Attorney may bring a refusal to register a late declaration to the attention of the court of first instance is an unwarranted obstacle that denied Dilcia, Violeta and their mothers access to the courts, in violation of Article 8(1) of the American Convention.
167. The IACHR also drew attention to the right of judicial review of the decisions of government authorities in its report on merits in the case of Loren Laroye Riebe Star, Jorge Barón Guttlein, and Rodolfo Izal Elorz v. Mexico. In that case, the IACHR noted that the three priests should have had access to a judicial authority: a) to determine the lawfulness of their detention; b) to examine the validity of the evidence compiled against them; and c) to present evidence countering those charges and to allow them to mount a judicial challenge against the decision to expel them. In that connection, the IACHR concluded:
The above-mentioned provisions guaranteeing the right to due process are applicable to administrative as well as judicial procedures. This emerges from the text of Article 8(1), which refers to “...the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.
168. In the aforementioned case of Roger Herminio Salas Gamboa v. Peru, the petitioner also claimed violation of Articles 8 and 25 of the American Convention because there was no possibility of judicial review of the decisions of the National Council of the Magistracy of Peru. As was mentioned, Mr. Salas Gamboa was not reconfirmed in his position as a full judge of the Supreme Court of Justice of the Republic following a review of his performance by said Council. The petitioner had no possibility of accessing the text of said review, nor of appealing the decision in judicial proceedings because that possibility is not provided by Peruvian law. Having examined this situation, the IACHR found that such allegations could characterize violations of Articles 8 and 25 of the American Convention.
169. We will return to the right of judicial review of administrative decisions in the following section of this report; however, it is fair to conclude, in the light of the above-summarized precedents, that said right is regarded as an integral part of administrative due process in the framework of the Inter- American Human Rights System.
170. In their examinations of cases that concern, inter alia, economic, social and cultural rights, rights of indigenous peoples, rights of migrants, and environmental rights, both the IACHR and the Inter-American Court have developed a clear standard as regards the full applicability of the guarantee of due process of law in administrative proceedings.
171. Both organs have determined that due process of law must be observed in all proceedings for the determination of rights. As the Court has found, Article 8(1) of the American Convention is also applicable to any situation in which a nonjudicial government authority adopts decisions on obligations and rights.
172. In keeping with this notion, the IASHR has underscored the need to regulate and restrict state discretionary power. Thus, the Court and the IACHR have determined that the activities of administrations are subject to specific limits, among them respect for human rights. On this point, in cases that involve especially vulnerable groups, the Inter-American Court has identified the need to draw links between the scope of administrative due process and effective observance of the prohibition of discrimination.
173. The IASHR has begun to identify the elements that comprise the rights to a fair trial in administrative proceedings. In this connection, the Commission has considered that one of the elements that make up administrative due process is the guarantee of a hearing for the determination of the rights at issue. According to the IACHR, that guarantee includes: a) the right to legal assistance; b) the right to exercise the right of defense; and, c) the right to a reasonable time in which to prepare and formalize arguments, as well as to seek and adduce the corresponding evidence. The Commission has also concluded that prior notification of charges is also a core component of that guarantee.
174. The right to a reasoned decision on merits and the need to ensure publicity of administrative proceedings have also pinpointed both by the IACHR and by the Court as integral components of due process.
175. In turn, both organs of the IASHR have emphatically drawn attention to the right to an administrative proceeding in a reasonable time as one of the components of the right to a fair trial. The Inter-American Court has established a clear standard in this respect. Thus, it has determined that a prolonged a delay in an administrative proceeding constitutes, in principle, a violation of Article 8 of the American Convention and that, in order to refute such a conclusion, it is up to the State to show that the delay in the proceeding was due to the complexity of the case or to the conduct of the parties therein.
176. Finally, another element of the guarantee of due process of law in administrative proceedings that has evolved in the framework of the IASHR is the right to judicial review of administrative decisions. On this point, the IACHR has determined that any law or measure that obstructs access to the courts and is not warranted by what is reasonably needed for the administration of justice must be regarded as contrary to Article 8(1) of the American Convention.
 Article 8(1) of the American Convention provides, “Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.”
Court H.R., Baena Ricardo et al.
Judgment of February 2, 2001. Series C
 The workers had taken part in a march and a 24-hour stoppage, both called by the Coordinating Organization of State Enterprise Workers Unions to demand a series of labor claims. According to the petition submitted to the Government of Panama by the Coordinating Organization of State Enterprise Workers Unions, the demands consisted of: “non-privatisation of State enterprises; derogation of the laws that reformed the Labour Code; halting of the dismissals and immediate reinstatement of the leaders of the State sector; payment of bonuses and of the thirteenth bonus month; respect for labour laws, internal regulations and the agreements arrived at with State sector organisations; respect for labour organisations and their leaders; derogation of war decrees and anti-worker decrees; compliance with the job and work manuals, classifications, salary scales and evaluations; ratification and implementation of Agreement 151 of the International Labour Organisation (ILO); respect for the autonomy of State entities; approval of an “Administrative, scientific and democratic career;” non-modification of the Organic Law of the Social Security Administration and other social laws, such modification being intended to reduce the benefits thereby provided for; satisfactory response to the situation of the construction workers sector…” Cf. Baena Ricardo et al. Case, cit., para. 88(a).
 On December 14, 1990, the Legislative Assembly passed Law 25. The cited Law 25 was published in the Official Gazette of Panama N° 21.687 of December 17, 1990. In Article 6 of said Law it was stated that it was a public order law, and that it would have a retroactive effect as of December 4, 1990. Cf. Baena Ricardo et al. Case, cit., para. 88(n).
 Two of the State entities were governed by a specific law and by their respective internal labor regulations, under a special labor jurisdiction, while all other public servants were subject to the provisions of the Administrative Code, the organic law, and the internal regulations of the institution at which they worked. For the various procedures originally provided for the dismissal of an employee of these institutions, see Cf. Baena Ricardo et al. Case, cit., para. 88(m).
 See in this respect, Cf. Baena Ricardo et al. Case, cit ., para. 88(w), (x), (y), and (z).
 Cf. Baena Ricardo et al. Case, cit., paras. 124, 125.
 Cf. Baena Ricardo et al. Case, cit., para. 127. The same quotation can also be found in the above-cited Advisory Opinion OC-18/03, cit., para. 125.
It is also worth noting that upon expressing its opinion regarding the observance of due process in administrative proceedings, the Inter-American Court cites the following precedents in the European system of human rights: “Cf., inter alia, Eur. Court. H.R., Campbell and Fell, Judgment of 28 June 1984, Series A No. 80, para. 68; Eur. Court H.R., Deweer, Judgment of 27 February 1980, Series A No. 35, para. 49; and Eur. Court H.R., Engel and others, Judgment of 8 June 1976, Series A No. 22, para. 82.” Cf. “Baena Ricardo et al. Case,” cit., para. 129.
On this point it should be mentioned that the European Court of Human Rights has developed abundant case law on the connection between due process guarantees in administrative proceedings and the guarantee of economic, social and cultural rights. It expressed its opinion accordingly, for instance, in the Feldbrugge case.
In this case, the applicant, a Dutch national, ceased to register at the Regional Employment Exchange as a result of an illness that left her unfit to work. However, subsequently, an administrative body suspended the sickness allowance she had been receiving on the ground that, based on a medical examination, it was found that she was fit to resume work. The applicant appealed the decision in successive administrative proceedings to no avail. However, she alleged that, due to flaws in the procedure imputable to the public agencies, inter alia, limitations on her ability to participate in the proceedings and the restrictive nature of the available remedies, she had not been given a hearing that complied fully with the guarantees provided in Article 6(1) of the European Convention on Human Rights, which enshrines the right to a fair trial. In deciding the case, the ECHR had to examine the nature of the right to health insurance under Dutch law. A number of factors, such as the compulsory nature of insurance, the legal rules governing social security benefits, and assumption by the State of responsibility for social protection, tended to suggest that it should be considered a public-law right. However, other considerations argued that it should be considered a private right; to wit, its personal and economic nature, its connection with a contract of employment, the fact that the benefit was a substitute for the applicant’s salary, affinities with insurance under the ordinary law, and participation of workers in the financing of social security schemes. In spite of the fact that the right in question was considered a public law right under Dutch law, according to the principle of autonomous interpretation, that circumstance was not considered relevant. Finally, the Court concluded that the right was covered by Article 6(1) and that the State had violated that provision. In that regard, the ECHR found that “the procedure followed before the President of the Appeals Board by virtue of the Netherlands legislation was clearly not such as to allow proper participation of the contending parties, at any rate during the final and decisive stage of that procedure. To begin with, the President neither heard the applicant nor asked her to file written pleadings. Secondly, he did not afford her or her representative the opportunity to consult the evidence in the case-file, in particular the two reports - which were the basis of the decision - drawn up by the permanent experts, and to formulate her objections thereto.” In conclusion, the ECHR found that there had been a violation of Article 6(1). Cf. ECHR, Case of Feldbrugge v. The Netherlands, Application No. 8562/79, Judgment of 29 May 1986.
In 1993, the ECHR advanced further on the issue upon recognizing in Salesi v. Italy and Schuler-Zgraggen v. Switzerland that Article 6(1) of the European Convention on Human Rights applies to matters concerning social security benefits created as a public right. Accordingly, regardless of whether the social security, welfare assistance, or benefit has private-law characteristics (in particular, if can be connected to a contract of employment) or is guaranteed only by public law, all of the standards that comprise the general guarantee of due process are applicable if the right concerned is an individual economic right originating from a legal norm. In Salesi, the ECHR applied Article 6(1) in connection with a monthly disability allowance that the applicant received as social assistance because she lacked the basic wherewithal to live. The benefit did not derive from an employment contract and was not dependent on the payment of contributions. It was instituted by a law enacted pursuant to Article 38 of the Italian Constitution, which provides that all citizens who are unfit for work and lack the basic wherewithal to live shall be entitled to means of subsistence and welfare assistance. For the rest, the service was provided exclusively by the Italian State. In this case, the ECHR held that its interpretation of Article 6(1) was applicable to the field of social insurance even though the applicant’s benefit was more akin to a social welfare allowance than to social insurance. See, ECHR, Salesi v. Italy, Judgment of 26 February 1993, (Pub.ECHR, Series A, No. 257-E).
In Schuler-Zgraggen, the ECHR moves further toward the inclusion of economic, social and cultural rights under the protection of the fair trial clause, by finding that Article 6(1) is applicable to social insurance, including welfare assistance. In this case, the right to a fair trial was taken together with a violation of Article 14 of the Convention (prohibition against discrimination in the enjoyment of the rights recognized therein) since the applicant had been refused an invalidity pension on the curious grounds that as a married woman with a two-year-old son there was scant likelihood that, though healthy, she might return to work instead of looking after her home as a wife and mother. The ECHR found in its judgment that “Article 6 (1) does apply in the field of social insurance, including even welfare assistance.” See, ECHR, Schuler-Zgraggen v. Switzerland, Judgment of 24 June 1993, (Pub.ECHR, Series A, No. 263). As we shall see below, the link between the right to a fair trial and the prohibition of discrimination was also addressed in the framework of the IASHR, particularly in the Case of the Girls Yean and Bosico v. Dominican Republic. See, in this respect, Inter-American Court, Case of the Girls Yean and Bosico. Judgment of September 8, 2005. Series C No. 130.
 Cf. Baena Ricardo et al. Case, cit., paras. 130, 134, and 143.
Court H.R., Ivcher Bronstein Case. Judgment of February 6,
2001. Series C
 Cf. Official Communiqué No. 002-97-CCFFAA, issued on May 23, 1997, by the Joint Chiefs of Staff. Cf. Ivcher Bronstein Case, cit., para. 76(k).
Supreme Decree 004-97-IN of May 23, 1997. Cf. Ivcher Bronstein
 Cf. Ivcher Bronstein Case, cit., paras. 76(p) and (q).
 Cf. Ivcher Bronstein Case, cit., para. 76(t).
 Cf. Ivcher Bronstein Case, cit., para. 95.
 Cf. Ivcher Bronstein Case, cit., para. 110.
 Cf. Ivcher Bronstein Case, cit., paras. 104 and 105.
 I/A Court H. R., Case of the Indigenous Community Sawhoyamaxa. Judgement of March 29, 2006. Series C No. 146.
 As it did in the The Mayagna (Sumo) Awas Tingni Community Case (Judgment of August 31, 2001) and in the Case of the Indigenous Community Yakye Axa (Judgment of June 17, 2005).
 Cf. Case of the Indigenous Community Sawhoyamaxa, cit., para. 111.
 Cf. Case of the Indigenous Community Sawhoyamaxa, cit., paras. 81 and 82.
 I/A Court H. R., Case of Claude Reyes et al. Judgment of September 19, 2006. Series C No. 151.
 This Committee is the only body authorized, in representation of the State of Chile, to approve the entry into Chile of foreign capital under the Foreign Investment Statute. Cf. Case of Claude Reyes et al., cit., para. 57.3.
 Cf. Case of Claude Reyes et al., cit., para. 118.
 IACHR, Report Nº 49/99, Case 11.610 Loren Laroye Riebe Star, Jorge Barón Guttlein and Rodolfo Izal Elorz, Mexico, April 13, 1999.
 For an account of the humiliating treatment to which the priests were subjected on the way to Tuxtla Gutiérrez airport, see, Case of Loren Laroye Riebe Star, Jorge Barón Guttlein and Rodolfo Izal Elorz”, cit., paras. 6, 7, and 8.
 Cf. Case of Loren Laroye Riebe Star, Jorge Barón Guttlein and Rodolfo Izal Elorz, cit., para. 10.
 The IACHR cited the following precedents in the European system of human rights: “European Commission on Human Rights, Huber v. Austria, 1975 Yearbook of the European Convention on Human Rights, Martinus Nijhoff, The Hague 1976, paras. 69 to 71. In the same sense, the European Court of Human Rights has considered that the principles of due process are applicable, mutatis mutandis, to disciplinary sanctions of an administrative nature. European Court, Case of Albert and Le Compte, Judgement.” Cf. Case of Loren Laroye Riebe Star, Jorge Barón Guttlein and Rodolfo Izal Elorz, cit., para. 66.
 Cf. Case of Loren Laroye Riebe Star, Jorge Barón Guttlein and Rodolfo Izal Elorz, cit., paras. 66, 67 and 69 and their respective footnotes.
 Cf. Case of Loren Laroye Riebe Star, Jorge Barón Guttlein and Rodolfo Izal Elorz, cit., paras. 70 and 71.
 Cf., Baena Ricardo et al. Case, cit., para. 116.
 Cf. IACHR, Second Progress Report of the Special Rapporteurship on Migrant Workers and Their Families in the Hemisphere (OEA/Ser./L/V/I111 doc. 20 rev.), April 16, 2001; par. 95. The At the same time, regarding the process of determination on the status of the migrant worker the report states: “migration policy is circumscribed by general respect for human rights, and in that context, by guarantees of due process […] a decision on the legal status of a migrant worker does affect his chances of making a living, working under decent conditions, feeding his family and providing an education for his children. It will also affect his right to raise a family and the special protection extended to minors within a family […] the value at issue in such proceedings is similar to liberty, or at least closer to liberty than would be the case in other administrative or judicial proceedings. Thus, at the very least, a minimum threshold of complete of due process guarantees should be provided.” (Emphasis added), Cf. Second Progress Report of the Special Rapporteurship on Migrant Workers and Their Families in the Hemisphere, cit., para. 98.
The IACHR has also cited the considerations of the Rapporteurship on Migrant Workers and Their families in the Hemisphere in its Report on Terrorism and Human Rights. Cf. Report on Terrorism and Human Rights, cit., paras. 400 and 401.
 Cf. Baena Ricardo et al. Case, cit., para. 126. It is valid to refer here to Case 11.430. The petiton alleged that following his promotion to Brigadier General of the Mexican Army, José Francisco Gallardo Rodríguez began to be the victim, of threats, harassment, and intimidation by high-level authorities of the Secretariat for National Defense (SEDENA). Furthermore, the petition asserts that SEDENA, through Mexican Army officers, undertook a campaign of defamation and sought to discredit him, and that he was subjected to unjust judicial procedures and imprisonment. In its report on merits, the IACHR referred to the so-called “theory of abuse of power” in examining the behavior of the Office of the Attorney General of Mexico toward Mr. Gallardo. Thus, the IACHR noted, “‘…The abuse of power is an abuse of mandate, an abuse of law. An administrative act may have been performed by the competent official with all the appearances of legality and yet this discretionary act, which the qualified official had the strict right to perform, may be rendered illegal if its author has used his powers for a purpose other than that for which they were conferred on him, or to speak in terms of jurisprudence, for a purpose other than the public interest or the good of the service.’ The Commission notes that, while it may appear that the law has been adhered to in all the procedures by which the accused has been detained, the above-cited investigations have been opened, and the subsequent criminal actions have been brought, nevertheless the Mexican justice authorities, whether regular or military, who are responsible together with the Judicial Police for the prosecution of crimes, pursuant to Article 21 of the Mexican Constitution, have used the public power to launch preliminary investigations, whether ex officio or ex parte, and to bring subsequent criminal actions, for purposes other than those established in Mexican legislation, and in so doing have abused that power, through a series of successive and seemingly legal acts that have tended to deprive General José Francisco Gallardo of his personal liberty.” (Emphasis added) Cf. IACHR, Report Nº 43/96, Case 11.430, Mexico, October 15, 1996, para. 114.
 I I/A Court H. R., Case of the “Five Pensioners”. Judgment of February 28, 2003. Series C No. 98.
 Cf. Case of the Five Pensioners, cit., para. 88(d).
 Cf. Case of the Five Pensioners, cit., para. 2.
 Cf. Case of the Five Pensioners, cit., para. 117. It should be clarified that in this case the Inter-American Court found that it was unable to rule on the alleged violation of Article 8 of the American Convention because it found that there was insufficient evidence in the record in that regard. The IACHR did not allege violation of Article 8 in its application to the Court; rather the victims’ representatives included it in the catalogue of violations that they claimed in their brief. On this point, see paras. 149 and 150.
 I/A Court H. R., Case of the Girls Yean and Bosico. Judgment of September 8, 2005. Series C No. 130.
 See in this respect, the section on “Proven Facts” in the Court’s judgment, Case of the Girls Yean and Bosico, cit., Chapter VIII.
Cf. Case of the Girls Yean and Bosico, cit., paras. 165, 166,
190, 191. It should be clarified that the Inter-American Court did
not rule that there had been a violation of Article 8 of the
American Convention in this case because it found that facts with
which the analysis of this guarantee was concerned occurred before
the Dominican Republic accepted the contentious juridiction of the
Court. See in this respect, Case of the Girls Yean and Bosico,
cit., paras. 198
 Cf. Case of the Girls Yean and Bosico, cit., paras. 240 and 242.
 I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002. Series A No. 17.
 I/A Court H. R., Juridical Condition and Rights of the Undocumented Migrants. Advisory Opinion OC-18 of September 17, 2003. Series A No. 18.
 Cf. Advisory Opinion OC-17/02, cit., paras. 112 and 113.
Specifically with respect to the scope of administrative due process where the rights of the child are concerned, the Inter-American Court has determined the following: “Participation of the Child […] Finally, those responsible for application of the law, whether in the administrative or judiciary sphere, must take into account the specific conditions of the minor and his or her best interests to decide on the child’s participation, as appropriate, in establishing his or her rights. This consideration will seek as much access as possible by the minor to examination of his or her own case. […] Administrative Process […] Protection measures adopted by administrative authorities must be strictly in accordance with the law and must seek continuation of the child’s ties with his or her family group, if this is possible and reasonable[…]; in case a separation is necessary, it should be for the least possible time possible […]; those who participate in decision-making processes must have the necessary personal and professional competence to identify advisable measures from the standpoint of the child’s interests […]); the objective of measures adopted must be to re-educate and re-socialize the minor, when this is appropriate; and measures that involve deprivation of liberty must be exceptional. All this enables adequate development of due process, reduces and adequately limits its discretion, in accordance with criteria of relevance and rationality.” (Emphasis added), Cf. Advisory Opinion OC-17/2002, cit., paras. 102 and 103.
 Cf. Advisory Opinion OC-18/03, cit., para. 119.
 IACHR, Report Nº 57/05, Petition 12.143, Admissibility, Eduardo Perales Martínez, Chile, October 12, 2005.
 Cf. Case of Eduardo Perales Martínez, cit., para. 1.
 Cf. Case of Eduardo Perales Martínez, cit, para. 13.
 Cf. Case of Eduardo Perales Martínez, cit, paras. 17 and 36.
 Cf. Case of Loren Laroye Riebe Star, Jorge Barón Guttlein and Rodolfo Izal Elorz, cit.
 In particular, the IACHR noted, “The Commission establishes that the Mexican State denied Fathers Loren Riebe Star, Jorge Barón Guttlein, and Rodolfo Izal Elorz the right to a hearing in order to determine their rights. This guarantee should have included the right to be assisted during the administrative sanction proceedings; to practice their right of defense, with enough time to ascertain the charges against them and hence to refute them; to have a reasonable time in which to prepare and formalize their statements; and to seek and adduce the corresponding evidence. Thus the IACHR concludes that the aforementioned State violated said persons’ right to judicial protection, in breach of Article 8 of the American Convention.” Cf. Case of Loren Laroye Riebe Star, Jorge Barón Guttlein and Rodolfo Izal Elorz, cit, para. 71.
It is significant that in its analysis the IACHR used the same interpretation of Article 14 of the Mexican Constitution as that adopted in Mexican case law. Thus, in its report, the Commission found, “The Mexican authorities have stated their case regarding the essential requisites for an administrative procedure, which they describe as ‘those that guarantee an appropriate and timely defense prior to the privative act.’ Specifically they have established that: ‘The guarantee of a hearing established by Article 14 of the Constitution consists of granting citizens the opportunity to defend their case prior to any act depriving them of liberty, property, possessions, or rights, and due respect for that guarantee obliges the authorities, among other things, to ‘comply with the formal prerequisites inherent in the procedure.’ That means the formalities required to guarantee adequate defense prior to the privative act, in other words basically the following requirements: 1) notification of when the procedure begins and its consequences; 2) the opportunity to present and expound evidence supporting their case; 3) the opportunity to argue their case; 4) a verdict settling the issues raised. Failure to fulfill these requisites constitutes failure to comply with the purpose of the right to a hearing, which is to avoid leaving an affected party defenseless.’” Cf. Case of Loren Laroye Riebe Star, Jorge Barón Guttlein and Rodolfo Izal Elorz, cit, para. 51.
 Cf. Case of Loren Laroye Riebe Star, Jorge Barón Guttlein and Rodolfo Izal Elorz, cit. paras. 74, 75, and 123.
 Cf. Case of Loren Laroye Riebe Star, Jorge Barón Guttlein and Rodolfo Izal Elorz, cit. para. 82.
It should be mentioned that, in the framework of its Second Progress Report, the Special Rapporteurship on Migrant Workers and Their Families in the Hemisphere, set itself the task of listing the component parts of administrative due process, in particular with regard to decisions connected with migration: “A. An accountable and impartial adjudicator. Decisions in the area of migration cannot be left to non-specialized administrative or police officials. Public officials responsible for such decisions must be accountable before the law, to superiors and to any horizontal control bodies charged with reviewing decisions. The process of appointing an adjudicator and the status of the office within the administrative structure of the state must guarantee impartiality and protection against any possible pressure or influence. We are not saying that only judges should make such decisions. In our opinion, conferring the power on administrative officials is compatible with international human rights law. Nonetheless, the requirements of impartiality and accountability mentioned above must be met. B. The right to be heard. A migrant worker must have and be able to effectively exercise the right to be heard, to have his say and defend his right not to be expelled. The right to a hearing should include the right to be informed of evidence to be used against him and the opportunity to counter it, and to produce and present relevant evidence in his own favor, with a reasonable amount of time granted to do so. C. Information, translation and interpretation. An immigrant, whatever his legal status, must be able to understand the proceedings he is involved in and all the procedural rights he is entitled to. Thus, translation and interpretation in his language must be made available as necessary. D. Legal Counsel. A person facing possible expulsion must have the opportunity of being represented by an attorney of his choosing or other qualified persons. It may be that the state cannot be asked to provide a lawyer free of charge as in criminal proceedings but free representation should at least be offered to indigents. Further, the information referred to in the preceding paragraph should include some form of specialized advice or the rights that assist the immigrant. E. Judicial Review. As has been mentioned, the decisions under consideration can legitimately be administrative in nature. However, judicial review must always be provided for, either through appeal in administrative law or by recourse to amparo or habeas corpus. This does not mean that every administrative decision on deportation must be examined judicially de novo, but we do believe that judges 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 Article 1(1) of the Convention and the right to prompt and effective recourse set out in Article 25. F. Access to Consular Officials. We have already said that timely access to consular officials must be ensured, above all for detainees. Such access should be made available in accordance with the terms of the Vienna Convention on Consular Relations. G. Appropriate Detention Conditions. Persons in detention must be treated humanely and in a way that does not endanger health or life. Rules governing detention should meet the minimum levels set out in international instruments such as the Convention against Torture and Other Cruel, Inhumane and Degrading Treatment or Punishment and the Standard Minimum Rules for the Treatment for Prisoners, among others.”(Emphasis added) Cf. Second Progress Report of the Special Rapporteurship on Migrant Workers and Their Families in the Hemisphere (OEA/Ser./L/V/I111 Doc. 20 rev.), April 16, 2001, para. 99.
 Cf. Ivcher Bronstein Case, cit.
 Cf. Ivcher Bronstein Case, cit., para. 98.
 IACHR, Report Nº 9/05, Petition 1/03, Admissibility, Elías Gattass Sahih, Ecuador, February 23, 2005.
 Cf. Elías Gattass Sahih, cit. para. 41.
 Cf. Elías Gattass Sahih, cit, para. 41. It should also be noted that the IACHR considered that the facts in the case could constitute violations of the rights contained Articles 7, 22, and 25 of the American Convention, in conjunction with the general oligation of the State to respect and ensure the aforementioned rights established in Article 1(1) of said instrument and in connection with the provisions of Article 2 thereof.
 Cf. Elías Gattass Sahih, cit, para. 6. The absence of prior notification of an administrative proceeding was also an important factor in the Case of Benito Tide Méndez, Antonio Sensión, Andrea Alezi, Janty Fils-Aime, William Medina Ferreras, Rafaelito Pérez Charles, Berson Gelim et al. v. Dominican Republic. See, in this respect, IACHR, Report Nº 68/05, Petition 12.271, Admissibility, October 13, 2005.
 Cf. Case of Claude Reyes et al., cit.
 Cf. Case of Claude Reyes et al., cit., paras. 122 and 123.
 Cf. IACHR, Report Nº 21/04, Petition 12.190, Admissibility, José Luis Tapia González et al., Chile, February 24, 2004, para. 36.
 As we shall see, Mr. Salas Gamboa also alleged violation of Articles 8 and 25 of the Convention on the grounds that there is no possibility of judicial review of the decisions of the National Council of the Magistracy. The IACHR also declared the case admissible as regards alleged vioaltion of Article 25 of the Convention.
 Cf. Report on Terrorism and Human Rights, cit.
 Cf. Report on Terrorism and Human Rights, cit., para. 287.
 Cf. Case of Claude Reyes et al., cit.
 Cf., Case of Claude Reyes et al., cit., para. 163. It should be mentioned here that the ECHR has also ruled on the obligation of the State to ensure access to public information in environmental protection cases. In this respect, see, ECHR, Oneryildiz v. Turkey, Judgment of 30 November 2004.
 I/A Court H. R., Case of the Indigenous Community Yakye Axa. Judgment of June 17, 2005. Series C No. 125.
 IACHR, Application to the Inter-American Court in the Case of the Indigenous Community Yakie Axa v. Paraguay, paras. 75, 158, and 207.
 Cf. I/A Court H. R., Case of the Indigenous Community Yakye Axa. Judgment of June 17, 2005. Series C No. 125, paras. 66, 71, 86, and 88.
 I/A Court H. R., Case of the Indigenous Community Sawhoyamaxa. Judgement of March 29, 2006. Series C No. 146.
 Cf. Application to the Inter-American Court in the Case of the Indigenous Community Sawhoyamaxa, paras. 130, 183, and 184.
 Cf. I/A Court H. R., Case of the Indigenous Community Sawhoyamaxa. Judgment of March 29, 2006. Series C No. 146, paras. 2, 88, and 89.
 Cf. Case of Loren Laroye Riebe Star, Jorge Barón Guttlein and Rodolfo Izal Elorz, cit.
 Cf. Case of Loren Laroye Riebe Star, Jorge Barón Guttlein and Rodolfo Izal Elorz, cit, para. 60.
 I/A Court H. R., Case of the Girls Yean and Bosico. Judgment of September 8, 2005. Series C No. 130.
 Cf. Application of the IACHR in the Case of the Girls Yean and Bosico, paras. 132 to 139.
 See in this respect, Application of the IACHR in the Case of the Girls Yean and Bosico, para. 139. See note 40.
 Cf. Loren Laroye Riebe Star, Jorge Barón Guttlein, and Rodolfo Izal Elorz, cit.
Cf. Loren Laroye Riebe Star, Jorge Barón Guttlein, and Rodolfo
Izal Elorz, cit.,
Cf. Loren Laroye Riebe Star, Jorge Barón Guttlein, and Rodolfo
Izal Elorz, cit.,
 Part of the following section continues the examination of judicial review of administrative decisions in order to analyze the appropriate scope of said judicial review in accordance with the standards set by the IACHR and the Inter-American Court.