57
140.
Article 8(1) of the Convention establishes the guidelines of the so-called
“due process of law,” which consists in, among other aspects, the right of every
person to be heard with due guarantees and within a reasonable time, by a
competent, independent and impartial tribunal, previously established by law, for
the determination of his rights.212
141.
Moreover, article 25(1) of the Convention establishes, in broad terms, the
obligation of every State Party to provide, to all persons subject to its jurisdiction,
an effective judicial recourse against acts that violate their fundamental rights.213
In particular, this Tribunal has established that States Parties have an obligation to
provide effective judicial recourses to victims of human rights violations (Art. 25),
recourses that must be substantiated in accordance with the rules of due process of
law (Art. 8(1)), all in keeping with the general obligation of such States to
guarantee the free and full exercise of the rights recognized by the Convention to
all persons subject to their jurisdiction (Art. 1(1)).214
142.
Similarly, the Court has pointed out that States have the responsibility to
embody in their legislation and ensure due application of effective remedies and
guarantees of due process of law before the competent authorities, which protect
all persons subject to their jurisdiction from acts that violate their fundamental
rights or which lead to the determination of the latter’s rights and obligations.215
The Tribunal has also established has established that for the State to comply with
that provided in Article 25 of the Convention, it is not enough that the remedies are
formally admissible but rather that they be effective in the terms of such rule,216
that is to say, there must be results or answers to the violations of rights in the
Convention, the Constitution or the law.217 The Court has held that said obligation
implies that the remedy must be suitable to combat the violation and that its
application must be made effective by competent authorities.218
143.
In this respect, the Tribunal highlights that some general irregularities that
would affect the mentioned judicial guarantees have been referred to.219 The
212
Cf. Case of Genie Lacayo v. Nicaragua. Merits, Reparations and Costs. Judgment of January 29,
1997. Series C No. 30, para. 74; Case of Yvon Neptune v. Haiti, supra note 49, para. 79; and Case of
Bayarri v. Argentina, supra note 123, para. 101.
213
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary Objections. Judgment of June 26,
1987. Series C N° 1, para. 91; Case of Fernandez Ortega et al v. Mexico, supra note 39, para. 180; and
Case of Rosendo Cantú et al v. Mexico, supra note 30, para. 164.
214
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary Objections, supra note 213, para.
91; Case of the “Las Dos Erres" Massacre v. Guatemala. Preliminary Objection, Merits, Reparations and
Costs. Judgment of November 24, 2009. Series C N° 211, para. 104; Case of Chitay Nech et al v.
Guatemala. Preliminary Objections, Merits, Reparations and Costs. Judgment of May 25, 2010. Series C
No. 212, para. 190.
215
Cf. Case of the “Street Children” (Villagrán Morales et al) v. Guatemala; supra note 29, para.
237; Case of Fernandez Ortega et al v. Mexico, supra note 39, para. 182; and Case of Rosendo Cantú et
al v. Mexico, supra note 30, para. 166.
216
Cf. Judicial Guarantees in States of Emergency (art. 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; Case of
Fernandez Ortega et al v. Mexico, supra note 39, para. 182; and Case of Rosendo Cantú et al v. Mexico,
supra note 30, para. 166.
217
Cf. Advisory Opinion OC-9/87, supra note 216, para. 23; Case of Fernandez Ortega et al v.
Mexico, supra note 39, para. 182; and Case of Rosendo Cantú et al v. Mexico, supra note 30, para. 166.
218
Cf. Case of Maritza Urrutia v. Guatemala. Merits, Reparations and Costs. Judgment of
November 27, 2003. Series C N° 103, para. 117; Case of Fernandez Ortega et al v. Mexico, supra note
39, para. 182; and Case of Rosendo Cantú et al v. Mexico, supra note 30, para. 166.
219
In their statements before the Court, Messrs. Cabrera and Montiel declared that they were not
committing any crime at the time of the arrest. In particular, Mr. Montiel indicated that he and his wife
arrived at the home of Mr. Cabrera Garcia because they were inviting the public to take part in a
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