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This expression stresses the “sham” that is rooted in some judgments, as a result
of the machinations —whether their outcome be an acquittal or a conviction— of
the authorities who investigate the facts, bring charges, and render judgment. The
process has been “like” a process, and the judgment serves a specific design rather
than the interests of justice.
18. However, such expression is not necessarily applicable to all cases to be
encompassed, which evidence a manifold reality. Yet, it reflects a highly relevant
issue: the subsistence or the decadence of double jeopardy –which used to be
referred to as the “sanctity” of double jeopardy— which, in turn, renders operative
the ne bis in idem principle, widely adopted in domestic and international systems.
Therefore, what seemed to be unquestionable not so long ago is now being
questioned: the validity of the judgment which acquires the authority of a final
pronouncement, the review of which is barred by double jeopardy (in its double
formal and material projection) and which, therefore, cannot be challenged by any
legal means, regardless of the liability of a different nature of those who unduly or
illegitimately rendered it.
19. The decadence of the absolute authority of the double jeopardy principle
inherent to a final and unappealable judgment, understood in the traditional sense
of the expression, is evident. International jurisdiction on human rights and
international criminal jurisdiction could hardly be effective, and might not even
exist, if the final decisions of domestic jurisdictional bodies were deemed to be
incontestable in all cases. The incorrectness or the irrelevancy of a domestic judicial
decision which puts an end to a dispute may be inferred from a variety of
circumstances: an error made by the authority who issued such decision, even if
there be no other source of injustice; or the illegality or illegitimacy with which the
judge acts, whether in the proceedings (due process breaches) or by
misrepresenting the facts leading to judgment. In both cases a judgment will be
rendered which does not further justice and which apparently —formally— serves
legal certainty.
20. Reflections on this issue are increasingly numerous in domestic precedents —
particularly in the precedents of constitutionality courts— as they have been in
international precedents before. All things considered, it is evident that the
authority of the double jeopardy principle is only justified by the authority which it
derives from a regular procedure and from the legitimacy of the acts performed by
the judge. It is true that the solution of adjudicatory cases and the conclusion of
conflicts is in the interest of society and of the State, but it is also true that such
worthy aim —which “sanctifies” the double jeopardy principle— should not be
sought and achieved at any cost, including the abuse of the means which make
jurisdictional action by the State legitimate, an action to which the custody of both
legal interests and ethical values is entrusted. In other words, the end does not
justify the means; these, instead, contribute to the justification of the aim sought
after. This inversion of the old pragmatic maxim is especially relevant as to
procedural matters, such as the admission and validity of evidence.
21. Moreover, this has been acknowledged in the precedents of the Inter-American
Court, which in several cases has found against the validity (due to their
incompatibility with the American Convention) of criminal proceedings when serious
procedural breaches have been committed, whereby it becomes necessary to
institute new proceedings or reopen previous ones at the point at which the breach
was committed. The outcome, in any case, will be the rendering of a new
judgment. To put it in different terms, what prevails is the notion that flawed
proceedings are not an actual proceedings and that the (apparent) judgment
rendered therein is not a genuine judgment. Should this be accepted, the
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