28
repair it, if it finds there has been a violation. 136 As was previously mentioned, the existence
of these guarantees, and by extension, of a model of exercise of control for conformity with
the Convention “constitutes one of the basic pillars, not only of the American Convention,
but also of the rule of law in a democratic society as per the Convention.” 137
92.
Likewise, it cannot be ignored that the fulfillment of the obligation to guarantee the
right to judicial protection does not correspond solely to the judges, but to all public
authorities, including the legislature, who must ensure that this type of remedy is provided
for in the law. Thus, the commitments of the States pursuant to Article 25(2) have an
intimidate relationship with the general obligation to guarantee established in Article 1(1) of
the American Convention, as well as the obligation to adopt domestic legal measures that
Article 2 of the Convention provides. The foregoing serve to guarantee that the competent
authority provided for by the legal system of the State determines the rights of any person
claiming such remedy;138 the development of the possibilities of judicial remedy;139 and that
the competent authorities shall enforce such remedies when granted.140
93.
It is important to once again note that the State Parties to the American Convention
have wide margins to comply with these general obligations. This approach has been constant
in the jurisprudence of the Tribunal by indicating that what is important is the observance of
“effectiveness” in terms of the principle of the effet utile “and this means that the State must
take such measures as may be necessary to actually comply with the provisions of the
Convention”;141 as such, the Inter-American Court has considered it necessary to reaffirm
that such obligation, by its very nature, constitutes an obligation of results.142
94.
Therefore, it can be said that integration at the normative level, but especially at the
interpretative level in the international and domestic domain contributes to the consolidation
of an integrated Inter-American System, which allows an intense dialogue between all
judicial practitioners, especially with judges of all hierarchies and subject-matters, which
inextricably produces the basis for the consolidation of the legal means to guarantee the
effectiveness of fundamental rights and the creation of a ius constitutionale commune in the
area of human rights in our region.
IV. THE RIGHT TO JUDICIAL PROTECTION IN THIS CASE
136
Cf. Case of Castañeda Gutman V. México. Preliminary Objections, Merits, Reparations and Costs.
Judgment of August 6, 2008. Series C No. 184, para. 100.
137
Case of Cantos V. Argentina. Merits, Reparations and Costs. Judgment of November 28, 2002. Series C
No. 97, para. 52; Case of Juan Humberto Sánchez V. Honduras. Preliminary Objections, Merits, Reparations and
Costs. Judgment of June 7, 2003. Series C No 99, para. 121; and Case of Maritza Urrutia V. Guatemala. Merits,
Reparations and Costs. Judgment of November 27, 2003. Series C No. 103, para. 117.
138
Cf. Article 25(2)(a) of the American Convention.
139
Cf. Article 25(2)(b) of the American Convention.
140
Cf. Article 25(2)(c) of the American Convention.
141
Case of Comunidad Indígena Yakye Axa V. Paraguay. Merits, Reparations and Costs. Judgment of June 17,
2005. Series C, No. 125, para. 101.
142
Cf. Case of Caesar V. Trinidad and Tobago. Merits, Reparations and Costs. Judgment of March 11, 2005.
Series C No. 123, para. 93.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents