the courts. Rather, the State has the duty to adopt affirmative measures to guarantee that the
judicial remedies it provides are “truly effective in establishing whether or not a human rights
violation has occurred and providing redress.”318 Thus, the Court has declared that “the inexistence
of an effective remedy for violations of the rights recognized by the Convention constitutes a
violation of the Convention by the State Party in which this situation occurs.”319
262. In addition, the Court has reiterated that the right of all persons to simple and prompt
recourse or any other effective remedy before a competent judge or tribunal for protection against
acts that violate their fundamental rights “constitutes one of the basic pillars, not only of the
American Convention, but also of the rule of law itself in a democratic society, within the meaning of
the Convention.”320
263. This Court has also held that, for a State to comply with the provisions of the aforesaid
article, it is not sufficient to ensure that the remedies formally exist, but rather they must be
effective.321 Thus, in the terms of Article 25 of the Convention, it is possible to identify two specific
responsibilities of the State. First, it must establish in its legislation and ensure due application of
effective remedies and guarantees of due process of law before the competent authorities that
protect all persons subject to their jurisdiction from acts that violate their fundamental rights or that
determine the latter’s rights and obligations. Second, it must guarantee effective mechanisms to
execute the decisions or judgments issued by said authorities, so that the declared or recognized
rights are effectively protected. This is because a final judgment (res judicata) provides certainty
concerning the right or dispute examined in the specific case and, therefore, one of its effects is the
requirement or obligatory nature of compliance. The proceedings should lead to achieving the
protection of the right recognized in the judicial ruling, by the proper application of that ruling. 322
Consequently, the effectiveness of the judgments and the judicial orders depends on their
execution.323 Anything to the contrary would entail the denial of the right concerned.324
264. Furthermore, with regard to indigenous peoples, it is essential that the States grant effective
protection that takes into account the inherent particularities of indigenous peoples, their economic
and social characteristics, and their special vulnerability, and their customary law, values, practices
and customs.325
B.1
Regarding the obligation to investigate
318
Cf. Case of the Saramaka People v. Suriname, Preliminary objections, merits, reparations and costs, para. 177. See
also Judicial Guarantees in States of Emergency (Arts. 27.2, 25 and 8 of American Convention on Human Rights). Advisory
Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 24.
319
Judicial Guarantees in States of Emergency (Arts. 27.2, 25 and 8 American Convention on Human Rights), para. 24;
Case of Castillo Petruzzi et al. v. Peru, para. 185. See also, Case of the Saramaka People v. Suriname. Preliminary
objections, merits, reparations and costs, para. 179.
320
Cf. Case of Castillo Páez v. Peru. Merits. Judgment of November 3, 1997. Series C No. 34, para. 82, and Case of the
Xákmok Kásek Indigenous Community v. Paraguay, para. 139.
321
Cf. Case of Velásquez Rodríguez v. Honduras, Merits, paras. 63, 68 and 81, and Case of Cabrera García and Montiel
Flores v. Mexico. Preliminary objections, merits, reparations and costs. Judgment of November 26, 2010. Series C No. 220,
para. 142. Also, Judicial Guarantees in States of Emergency (Arts. 27.2, 25 and 8 American Convention on Human Rights).
Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 24.
322
Cf. Case of Mejía Idrovo v. Ecuador. Preliminary objections, merits, reparations and costs. Judgment of July 5, 2011.
Series C No. 228, para. 104, and Case of Baena Ricardo et al. v. Panama. Competence. Judgment of November 28, 2003.
Series C No. 104, paras. 73 and 82.
323
Cf. mutatis mutandi, Case of Baena Ricardo et al. v. Panama. Competence, para. 82, and Case of Mejía Idrovo v.
Ecuador, para. 104.
324
Cf. Case of Baena Ricardo et al. v. Panama, Competence, para. 82, and Case of Mejía Idrovo v. Ecuador, para. 104.
325
Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, Merits, reparations and costs, para. 63, and Case of
Rosendo Cantú et al. v. Mexico. Preliminary objection, merits, reparations and costs. Judgment of August 31, 2010. Series C
No. 216, para. 184.
74
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