26
organism, which requires that the control for conformity with the Convention that is
exercised be of varying intensity.130
83.
Article 25 of the American Convention, which establishes the right to judicial
protection, clearly has a procedural dimension as well, as it stipulates the right to a
guarantee, an instrument to assert rights; in this case, the existence of a recourse with
certain characteristics that must be established and effectively comply with the obligations
of Articles 1(1) and 2 of the Convention. However, on the other hand, this recourse must
“protect all persons” against acts that violate their rights from various sources. Hence, from
this, one can actually see that, in reality, this dimension of Article 25 makes it so the right
to an effective judicial remedy is really a genuine substantive right of the guarantee of
rights, which depends upon nothing less than the effectiveness of the fundamental rights,
whether they be of a constitutional or conventional source.
84.
It is important to note here that, just as is stated in the Judgment in the present
case, “the American Convention does not impose a specific model for the regulation of
issues of constitutionality and control for conformity with the Convention.”131 In any event,
the Inter-American Court has repeatedly held that the important thing is that the treaty be
granted a “useful purpose.” That is, that it be respected and guaranteed in the manner in
which the State Parties consider it most pertinent. The integrative dimension of
constitutional and conventional fundamental rights, which may result through the exercise
of the right to judicial protection, is, in sum, an element of fundamental integration in a
model of exercise of control for conformity with the Convention.
B) The right to a judicial remedy as an essential part of a model of exercise of
control for conformity with the Convention
85.
The Inter-American Court has established that control for conformity with the
Convention is “an institution that is utilized to apply international law, in this case, the
international law on human rights, and, specifically, the American Convention and its
sources, including the case law of this Court.”132
86.
Likewise, the Inter-American Court has indicated that the Inter-American
jurisprudence, or the “interpreted conventional norm” is binding on two fronts: one related
to the case in particular (res judicata) addressed to the State that has been a material party
in the international process; and, the other which, at the same time, radiates general
effects for the remaining States Parties to the American Convention, as a matter of
interpretation (res interpretata). The foregoing is especially important for “control for
conformity with the Convention,” as all domestic authorities, in conformance with their
respective powers and the corresponding procedural regulations, should exercise this sort of
control, which is also helpful for compliance with judgments from the Inter-American
Court.133
130
In regard to the various intensities of “control of conformity with the Convention,” see the Opinion in the
Order of Compliance of the Judgment. Case of Gelman V. Uruguay. Order of March 20, 2013.
131
Para. 124 of the Judgment.
132
Case of Gelman V. Uruguay. Monitoring of Compliance with Judgment. Order of March 20, 2013, para. 65.
133
Cf. Case of Gelman V. Uruguay. Monitoring of Compliance with Judgment. Order of March 20, 2013, para.
67 and ss.
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