3
events that led to the disappearance of their relative. The reasons given above are also
valid to support my disagreement with such line of thought.
2.
Notwithstanding the foregoing, as regards Article 25, I also raise an objection to the Court
discussing the aforementioned article together with Article 8 of the Convention.
3.
Article 25 sets forth that everyone has the right to simple and prompt recourse, or any
other effective recourse, to a competent court or tribunal for protection against acts that violate
his fundamental rights, which is known in our continent as the right to the remedy called amparo
[protection of constitutional guarantees and rights]. 6 This is so to the point that the first drafting
of this provision only conferred the right regarding the rights set forth in the Constitution and in
the laws of the country concerned. 7 After it was later amended to include the wording in the
International Covenant on Civil and Political Rights, Article 2, paragraph 3 , it incorporated the
idea to extend the protection under such remedy of amparo to also include the human rights set
forth in the American Convention. 8
4.
The joint discussion of Articles 8 and 25, in my opinion, suggests that the only provision
contained in the Convention that establishes the right to the aforementioned protection measures
is the one embodied in Article 25. I believe that not to be so. That idea is indirectly supported by
the provisions in Article 46(1) (a) of the Convention which requires that “all domestic remedies”
be exhausted for a person to be able to resort to the individual communications examination
procedure in the Inter-American system. Evidently, these remedies cannot always be simple,
prompt and effective; on the contrary, they may consist in the right to bring an action to initiate
judicial proceedings of the most diverse nature, even allowing for the filing of appeals, among
other remedies, in each of such proceedings. The obligation of the State Parties to the Convention
to provide every type of remedy originates, in my opinion, in their duty to ensure the exercise of
fundamental rights since that obligation “implies the duty of States Parties to organize the
governmental apparatus and, in general, all the structures through which public power is
exercised, so that they are capable of juridically ensuring the free and full enjoyment of human
rights.” 9 In order to legally ensure the free and full exercise of human rights, the writ of amparo
set forth in Article 25 is definitely insufficient.
5.
If that is the case, the inclusion in Article 25 of the right to any type of remedy distorts the
original purpose of the rule, to the detriment of the victims. The Court thus bars itself from
developing the concept and the requirements of the writ of amparo and, in doing so, it also
hinders identification of which specific protection measures in the manner of the writ of amparo as
such should be in force in the domestic legal system of each State Party to the American
Convention to safeguard human rights in a simple, prompt and effective manner.
6.
I do not dissent with the opinion of the Court regarding the violation of Article 25 in the
instant case because the State acknowledged its liability for having violated Article 7(6) of the
6
The Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) of the American Convention on Human
Rights). Advisory Opinion OC-8/87 of January 30, 1987. Series A No. 8, para. 32.
7
Inter-American Specialized Conference on Human Rights, Minutes and Documents, p. 22.
8
Ibid., page 41.
9
Case of Velásquez-Rodríguez. Judgment of July 29, 1988. Series C No. 4, para. 166.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents