77
the fact that the State failed to adopt the measures tending to repair the vulnerable
situation of Mr. Vélez Loor in light of his status as an irregular migrant. In addition, “it
issued and applied clearly arbitrary norms[,] based on discriminatory concepts and
prejudices[,] and blatantly violated those guarantees embodied in the legal code to
prevent and remedy the breach of fundamental rights.” The Commission did not
analyze the alleged violations in light of said obligations. The State sustained that the
Panamanian domestic legal code provided for sufficient provisions to ensure all
persons under its jurisdiction, nationals or aliens, an equal and non-discriminatory
treatment.
253. Regarding what was alleged by the representatives, the Court recalls that the
general obligation contained in Article 1(1)292 refers to the State’s duty to respect and
guarantee “non-discrimination” in the enjoyment of the rights enshrined in the
American Convention, while Article 24293 protects the right to “equal treatment before
the law.”294 In other words, if the State discriminates upon the respect or guarantee
of a conventional right, the fact must be analyzed pursuant to Article 1(1) and the
substantial right in question. If, on the contrary, the alleged discrimination refers to
unequal protection by domestic law, the fact must be analyzed in light of Article 24
therein.295 Therefore, the alleged discrimination regarding the rights contained in the
Convention that were alleged by the representatives must be analyzed pursuant to
the general duty to respect and guarantee the conventional rights without
discrimination, enshrined in Article 1(1) of the American Convention.
254. The Tribunal emphasized the necessary measures that States must adopt to
guarantee effective and equal access to justice to all persons who are in a serious
vulnerable situation, such as an irregular migrant subjected to a measure of
deprivation of liberty. Hence, it focused on the notification of the right to consular
assistance (supra para. 152), and the requirement to have legal counsel, in the
circumstances of Mr. Vélez Loor (supra paras. 132 and 146). In the present case, it
has been proven that Mr. Vélez Loor did not have said assistance, which made
ineffective his ability to access and pursue remedies to challenge the measures that
deprived him of liberty, involving an unjustifiable impairment of his right of access to
justice. Based on the foregoing, the Court considers that the State failed to comply
with its obligation to guarantee, without discrimination, the right to access to justice
under the terms of Articles 8(1) and 25 of the American Convention, in conjunction
with Article 1(1) therein, to the detriment of Mr. Vélez Loor.
292
Article 1(1) of the Convention states that:
The States Parties to this Convention undertake to respect the rights and freedoms recognized
herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those
rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion,
political or other opinion, national or social origin, economic status, birth, or any other social
condition.
293
Article 24 of the Convention states that:
All persons are equal before the law. Consequently, they are entitled, without discrimination, to
equal protection of the law.
294
Cf. Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica. supra
note 289, paras. 53 and 54; Case of Rosendo Cantú, supra note 27, para. 183, and Case of Fernández
Ortega et al., supra note 27, para. 199.
295
Cf. Case of Fernández Ortega et al., supra note 27, para. 199, and Case of Rosendo Cantú et al.,
supra note 27, para. 183.
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