37
125. Although “the American Convention does not impose a specific model for the
regulation of issues of constitutionality and control for conformity with the Convention,” 177
the various systems of judicial protection of the rights at the domestic level must provide
effective means by which to resolve this sort of disputes, whatever its denomination and
body of control that determines it. Pursuant to this integrative dimension of the rights set
forth in Article 25 of the American Convention, a response as the one expressed by the High
Court of Justice, which is that although the Convention is binding, “it has no legal effect,”
makes it impossible to defend rights in court at the domestic level, and it suppresses an
indication of effectiveness to the rights enshrined therein, ignoring, in fact, the rules of
interpretation that the Convention itself establishes in its Article 29.
126. To avoid such situations, the Inter-American Court has emphasized that judges and
other bodies involved in the administration of justice at all levels have a duty to exercise ex
officio a form of “control for conformity” between domestic legal provisions and the
American Convention, obviously within the framework of their respective competences and
the corresponding procedural regulations.178 From my perspective, it is clear that this
control must be, in essence, effective and integrative of domestic and treaty rights, as
established in Article 25(1) of the Convention, in conjunction with Articles 1(1), 2, and
29(b) therein, which gives it a unique scope and characterization of control for conformity
with the Convention. However, regardless of what it is called or how it regulated or to what
extent or manner each domestic judge or court exercises it, this control must seek to
ensure that it is effective, and not an illusory recourse doomed to fail or that subtracts from
the effectiveness of the American Convention and, in general, the Inter-American corpus
juris.
V. CONCLUSION: THE RIGHT TO THE GUARANTEE OF RIGHTS, AS AN INTEGRATIVE
DIMENSION OF FUNDAMENTAL RIGHTS (FROM A DOMESTIC SOURCE OR THE
CONVENTION) IN A MODEL OF EXERCISE OF CONTROL FOR CONFORMITY WITH THE
CONVENTION
127. The rights provided for in Articles 8 (right to a fair trial) and 25 (judicial protection)
of the American Convention represent the most claimed rights and that have most
frequently been declared violated by the Inter-American Court along the more than twentyfive years that it has exercised its contentious jurisdiction. 179 This has further generated a
rich body of Inter-American case law that recognizes the intimate relationship that exists
between them, not without certain controversy among judges of previous compositions. 180
128. The right to a fair trial (Article 8), the right to judicial protection (Article 25), and the
general obligation contained in Article 1(1) of the American Convention have a close
177
Para. 124 of the Judgment.
178
Cf. Case of Almonacid Arellano et al. V. Chile. Preliminary Objections, Merits, Reparations and Costs.
Judgment of September 26, 2006. Series C No. 154, para. 124; and Case of Castañeda Gutman V. México.
Monitoring of Compliance with Judgment. Order of the Court of August 28, 2013, considering clause 23.
179
In effect, of the 172 cases that the Inter-American Court has resolved to date, violations of Article 8 (in
any chapter) have been declared in 136 occasions and of Article 25 in 134 cases. In 121 cases a violation of both
rights has been declared, while in only 14 cases only Article 8 was declared and in 13 only Article 25.
180
There are interesting debates that have taken place in the individual or dissenting opinions of former
presidents of the Inter-American Court, Antonio Augusto Cançado Trindade, Cecilia Medina and Sergio García
Ramírez, about binding nature, scope and the autonomy of Articles 8 and 25 of the Pact of San José.
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