effective in the terms of that provision.163 This effectiveness means that, in addition to
their formal existence, the remedies must produce results or responses to the
violations of rights recognized in the Convention, the Constitution, or the law.164 The
Court has reiterated that this obligation means that the remedy must be appropriate to
end the violation and its application by the competent authority must be effective.165 In
this regard, those remedies that are found to be illusory, owing to the general
conditions of the country or even the particular circumstances of a specific case,
cannot be considered effective.166
141. In addition, Article 25 of the Convention is closely related to the general
obligations contained in Articles 1(1) and 2 thereof, which attribute protective
functions to the domestic law of the States Parties. Consequently, the State has the
responsibility to design and establish an effective legal remedy, as well as to ensure
the due application of the said remedy by its judicial authorities.167 In this regard,
according to Article 25 of the Convention, domestic law must ensure the due
application of effective remedies before the competent authorities in order to protect
all those under its jurisdiction against acts that violate their fundamental rights or that
result in the determination of their rights and obligations.168
142. Regarding indigenous peoples, the Court has held that, to guarantee the right
of their members to communal property, the States must establish “an effective
remedy with guarantees of due process […] that allows them to reclaim their
traditional lands.”169
143. The Court observes that the right to reclaim indigenous communal lands in
Paraguay is guaranteed in law by the Constitution.170 The specific remedy to reclaim
these lands is regulated by Law No. 904/81, which establishes the Indigenous
Communities Statute. In the specific case of the Xákmok Kásek Community, the
163
Cf. Case of Ximenes Lopes v. Brazil. Preliminary objection. Judgment of November 30, 2005. Series
C No. 139, para. 4; Case of Radilla Pacheco v. Mexico, supra note 12, para. 196, and Case of Chitay Nech et
al. v. Guatemala, supra note 8, para. 202.
164
Cf. Case of the Constitutional Court v. Peru. Merits, reparations and costs. Judgment of January 31,
2001. Series C No. 71, para. 90; Case of Usón Ramírez v. Venezuela, supra note 161, para. 129, and Case of
Chitay Nech et al. v. Guatemala, supra note 8, para. 202.
165
Cf. Case of Acosta Calderón v. Ecuador. Merits, reparations and costs. Judgment of June 24, 2005.
Series C No. 129, para. 93; Case of Radilla Pacheco v. Mexico supra note 161, para. 291, and Case of Chitay
Nech et al. v. Guatemala, supra note 8, para. 202.
166
Cf. Habeas Corpus in Emergency Situations (Arts. 27(2), 25 and 8 of the American Convention on
Human Rights). Advisory Opinion OC-9/87 of October 6, 1987. Series No. 9, para. 24; Case of Usón Ramírez
v. Venezuela, supra note 161, para. 129, and Case of Chitay Nech et al. v. Guatemala, supra note 8, para.
202..
167
Cf. Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits. Judgment of
November 19, 1999. Series C No. 63, para. 237; Case of Usón Ramírez v. Venezuela, supra note 161, para.
130, and Case of Radilla Pacheco v. Mexico, supra note 12, para. 295.
168
Cf. Case of Suárez Rosero v. Ecuador. Merits. Judgment of November 12, 1997. Series C No. 35,
para. 65; Case of Usón Ramírez v. Venezuela, supra note 161, para. 130, and Case of Radilla Pacheco v.
Mexico, supra note 12, para. 295.
169
Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, supra note 5, para. 96, and Case of
the Saramaka People, supra note 16, para. 178.
170
Cf. Article 64 of the Constitution of Paraguay (file of appendices to the application, attachment 7,
folio 2437).
34
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