The American Convention on Human Rights : crucial rights and their theory and practice / Cecila Medina Quiroga.
2016
KDZ574 .M4313 2016 (Map It)
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Details
Title
The American Convention on Human Rights : crucial rights and their theory and practice / Cecila Medina Quiroga.
Uniform Title
Convención americana. English
Published
Cambridge, United Kingdom : Intersentia, [2016]
Call Number
KDZ574 .M4313 2016
Edition
2nd edition.
ISBN
9781780683218
1780683219
1780683219
Description
xxv, 373 pages ; 24 cm
System Control No.
(OCoLC)939550366
Summary
"The American Convention on Human Rights contains an in-depth analysis of and comment on crucial rights protected under the American Convention on Human Rights in the light of the decisions of the Inter-American Court of Human Rights. It shows the initially hesitant steps of the Inter-American Court in developing its position on five basic rights in the first years of its existence (1979-2003). Violations of the core rights - namely the right to life, the right to personal freedom, the right to personal integrity, the right to due process of law and the right to a judicial remedy - formed the majority of complaints before the Court at a time when many of the contracting States had either just left, or were still immersed in, a dictatorship and were only just attempting to introduce the idea of human rights in a democratic society into their own legal systems. This fully revised and updated second edition now also covers the Inter-American Court's steps towards maturity (2004-2014). Due to the political and social changes in the region, since 2003 the Court has had to examine and consider a greater variety of rights, such as freedom of speech, structural discrimination, and the lack of proper protection for women's human rights and for people with different sexual orientations. The human rights problems of indigenous peoples have also come to the Court's attention, because the lack of judicial protection of their rights leads to State responsibility by omission. In addition, systematic and gross violations of human rights continue to be a significant part of the Court's work, but their treatment has allowed the Court to develop better and more precise and effective responses. Taking into consideration the changes that have taken place, this book has given more attention to certain topics. A chapter on disappearances is now included. Developments in the way the Court understands its own functions, such as the idea of the State agents' conventionality control, are also discussed. In addition, a new introductory chapter provides a good overview of the social and political landscape of the region and a wider analysis of discrimination and equality. The American Convention on Human Rights is a scholarly yet practical book on a relatively new system for the protection of human rights. It is a useful tool for practitioners to support their work and for academics in their teaching of the inter-American System"--Unedited summary from book cover.
Note
Translation of: La convención americana : teoría y jurisprudencia : vida, integridad personal, libertad personal, debido proceso y recurso judicial.
Bibliography, etc. Note
Includes bibliographical references and index.
Other Editions
Revision of Medina Quiroga, Cecilia. Convención americana. English. American Convention on Human Rights. Cambridge, United Kingdom ; Antwerp : Intersentia, [2014] 9781780681016
Record Appears in
Gift
Purchased from the income of the Soll Fund
Added Author
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Soll Fund
Table of Contents
Preface
vii
Acknowledgments
xi
Table of Cases
xix
ch. 1
Court and its Circumstances
1
1.
Introduction
1
2.
Social and Political Landscape
1
3.
General Legal Framework
3
4.
American Convention on Human Rights
5
4.1.
Holders of Human Rights
5
4.2.
Supervisory Organs
8
4.3.
Protected Rights
9
4.4.
State Obligations
15
4.5.
Obligations to Respect and to Ensure
17
4.5.1.
Prevention
20
4.5.2.
State's Reaction to a Violation
23
4.5.3.
Obligations Arising from Noncompliance
25
4.6.
Obligation to Cooperate
28
4.7.
Obligation to Control Conventionality
29
4.8.
Restrictions
32
4.9.
Temporary Suspension of Obligations
34
4.9.1.
Grounds for Authorizing Suspension
35
4.9.2.
Obligations not Susceptible to Suspension
36
4.9.3.
Proportionality of Measures of Suspension
38
4.9.4.
Prohibition on Affecting Obligations not Subject to Suspension in Other International Law Norms
40
4.9.5.
Prohibition of Discrimination
40
4.9.6.
Notification of Other States Parties and International Supervision
41
5.
Principle of Equality and Non-Discrimination
42
6.
Interpretation of Human Rights Treaty Provisions
51
7.
Responsibility of States
56
ch. 2
Disappearances
63
1.
Introduction
63
2.
Normative Framework
65
3.
Phenomenon of Disappearances in the Court
69
3.1.
Elements and Characteristics
69
3.2.
Question of Jurisdiction
75
3.3.
Evidence and State Responsibility
84
3.4.
Prevention and Investigation
86
3.5.
Impunity
88
4.
Next of Kin as Victims of a Disappearance
92
4.1.
Next of Kin and Article 5
93
4.2.
Next of Kin and Access to Justice
97
ch. 3
Right to Life
101
1.
Introduction
101
2.
Death Penalty
103
3.
Protection of the Right to Life in General
109
3.1.
Duty to Prevent
109
3.2.
Duty to Prevent the Misuse of Force
112
3.3.
Prevention at the Inter-American Level
116
3.4.
Duty to Investigate the Misuse of Force
117
3.5.
Duty to Punish and Make Reparation
122
4.
Life, Personal Integrity and Economic, Social and Cultural Rights
125
4.1.
Children
125
4.2.
Indigenous Peoples
128
4.3.
Health, Life and Personal Integrity
132
5.
Protection of Life from the Moment of Conception
134
ch. 4
Right to Humane Treatment
147
1.
Introduction
147
2.
Article 5(1) of the American Convention
151
3.
Different Kinds of Prohibited Conduct in Human Rights Treaties
153
4.
Prohibited Conducts in the American Convention (Article 5(2))
159
4.1.
Legal Framework
159
4.2.
Court's Case Law
162
5.
Treatment of People Deprived of Liberty (Article 5(2))
168
6.
Belem do Para Convention and its Interaction with Article 5 of the American Convention
174
7.
Obligation to Investigate, Prosecute, Make Reparations and Punish
184
8.
Separation of Convicted Persons from Accused Persons (Article 5(4))
186
9.
Special Provisions for Children and Adolescents (Article 5(5))
188
10.
Individualization and Purpose of a Sentence (Article 5(3) and (6))
190
ch. 5
Right to Personal Liberty
193
1.
Introduction
193
2.
General Requirements: Legality and Absence of Arbitrariness (Article 7(2) and (3))
199
2.1.
Legality
200
2.2.
Absence of Arbitrariness
202
3.
Grounds for Arresting and for Keeping a Person in Detention (Article 7(2))
203
4.
Procedural Requirements for an Arrest or for Preventive Detention
206
4.1.
Right to be Informed of the Reasons for Arrest (Article 7(4))
209
4.2.
Right to be Notified of the Charges without Delay (Article 7(4))
210
4.3.
Right to be Brought Promptly before a Judicial Authority (Article 7(5))
211
4.4.
Right to be Brought to Trial within a Reasonable Time or to be Released (Article 7(5))
213
4.5.
Writ of habeas corpus (Article 7(6))
220
5.
Other State Obligations with regard to Deprivation of Liberty
222
6.
Prohibition on Detention for Debts (Article 7(7))
226
7.
Deprivation of Liberty of Children and Adolescents
227
8.
Deprivation of Liberty of Migrants
230
9.
Deprivation of Liberty of Migrant Children
233
ch. 6
Right to Due Process
239
1.
Introduction
240
2.
Issue of the Fourth Instance
242
3.
Right to a Hearing or Access to Justice
246
4.
Determination of Rights and Obligations and Criminal Charges
251
5.
Competent, Independent and Impartial Tribunal, Previously Established by Law
262
5.1.
Concept of a Tribunal
262
5.2.
Tribunal Previously Established by Law
263
5.3.
Competent, Independent and Impartial Tribunal
264
6.
Due Guarantees
276
6.1.
Principles of audi alteram partem and Equality
277
6.2.
Right to be Represented by an Attorney
279
6.3.
Reasonable Time
280
6.3.1.
Factors to Decide on the Reasonableness of a Delay
281
6.3.2.
Burden of Proof
286
6.3.3.
Start and End of the Period to be Counted
287
6.3.4.
Is the Trial an Indivisible Unit for Purposes of Jurisdiction?
288
6.3.5.
How to Measure the Period
290
6.4.
Right to a Reasoned Ruling
291
6.5.
Right for the Ruling to be Enforced
292
7.
Investigation, Due Diligence and Right to the Truth
293
7.1.
Investigation
293
7.2.
Due Diligence
296
7.3.
Right to the Truth
297
8.
Special Guarantees for the Accused
302
8.1.
Presumption of Innocence
302
8.2.
Right to a Translator or Interpreter
305
8.3.
Right to be Informed of the Accusation
307
8.4.
Right to Defense of the Accused
308
8.5.
Pleading of Guilt, Confession and Coercion
314
8.6.
Right to Appeal the Judgment to a Higher Court
316
8.7.
Principle of non bis in idem
320
8.8.
Public Trial, Oral Trials, and Rulings Open to the Public
322
9.
Possibility of Other Guarantees not Indicated in Article 8
323
10.
Due and Special Guarantees for Children
326
ch. 7
Principle of Legality, Freedom from Ex Post Facto Laws, and Right to Compensation for Miscarriage of Justice
335
1.
Principle of Legality: nullum crimen sine lege
335
2.
Nullum poena sine lege
342
3.
Most Favorable Law
344
4.
Right to Compensation for Miscarriage of Justice
345
ch. 8
Right to Judicial Protection
349
1.
Introduction
349
2.
Article 25 and its Connection with Other Provisions of the Convention
352
3.
Characteristics of the Remedy
357
3.1.
Judicial Remedy
357
3.2.
Simple and Prompt Remedy
358
3.3.
Effective Remedy
360
4.
State Obligations
364
5.
Right to a Remedy and States of Emergency
366
Index
369