19
granted by Article 25 of the Convention is the real possibility of access to a judicial remedy
so that the competent authority, with jurisdiction to issue a binding decision, determines
whether there has been a violation of a right claimed by the person filing the action, and
that the remedy is useful to restitute to the interested party the enjoyment of his right and
to repair it, if it finds there has been a violation.97
61.
On another note, Article 8(2)(h) of the American Convention refers to an essential
guarantee that must be respected as part of due process of law, so that a party may turn to
a different or higher court for revision of a judgment that was unfavorable to that party’s
interests.98 For a true review of the judgment, in the sense required by the Convention, the
higher court must have the jurisdictional authority to take up the particular case in
question. This is part of a criminal proceeding, including the processing of the ordinary
challenges filed against the judgment.99
62.
The parallels between the remedies provided for by both rights are, at times,
evident, especially in the manner of substantiation. Both must be effective, accessible, and
must respect the framework of due process of law set forth in Article 8(1) of the American
Convention. Nevertheless, the right to judicial protection (Article 25) is broad and general,
to protect the rights recognized by the Constitution, the laws of the State concerned, or the
American Convention, while the other right (8(2)(h)) is limited to promoting the review of a
decision within the context of a process which can include the determination of rights and
obligations of both a criminal, as well as a civil, labor, fiscal, or any other nature.100
63.
To understand the difference between the two, it is also necessary to consider that
those two recourses are not the only ones provided for in the American Convention; for
instance, on another note, we have the recourse of pardon or clemency relied upon in the
regulation of capital punishment established in Article 4(6) of the American Convention. 101
Likewise, we have the remedy set forth in Article 7(6) of the foregoing international
instrument, which provides for the right of individuals to recourse to a competent court in
order for that court to decide, without delay, on the lawfulness of his arrest or detention, or
even of the threat that his liberty will be deprived. 102
64.
The distinction between each of the remedies in relation to the provisions of Article
25 of the American Convention has not always been clear. In fact, in the beginning of InterAmerican jurisprudence, formulas combining remedies with Article 25 of the American
96
Cf. Case of Velásquez Rodríguez V. Honduras. Preliminary Objections. Judgment of June 26, 1987. Series
C No. 1, para. 91; and Case of Massacres El Mozote and nearby places V. El Salvador. Merits, Reparations and
Costs. Judgment of October 25, 2012. Series C No 252, para. 242.
97
Cf. Case of Castañeda Gutman V. México. Preliminary Objections, Merits, Reparations and Costs.
Judgment of August 6, 2008. Series C No. 184, para. 100.
98
Cf. Case of Herrera Ulloa V. Costa Rica. Preliminary Objections, Merits, Reparations and Costs. Judgment
of July 2, 2004. Series C No. 107, para. 158.
99
Cf. Case of Herrera Ulloa V. Costa Rica. Preliminary Objections, Merits, Reparations and Costs. Judgment
of July 2, 2004. Series C No. 107, para. 159.
100
Cf. Case of de la “White Van” (Paniagua Morales et al.) V. Guatemala. Merits. Judgment of March 8, 1998.
Series C No. 37, para. 149.
101
See, for example, the decision in the Case of Fermín Ramírez V. Guatemala. Merits, Reparations and
Costs. Judgment of June 20, 2005. Series C No. 126, para. 105 to 110.
102
García Ramírez, Sergio. Due Process. Standards of the Inter-American Jurisprudence [Debido Proceso.
Criterios de la Jurisprudencia Interamericana]. México, Porrúa, 2012, págs. 49 and 50.
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