33
protection and its use as a delaying strategy.110 In light of the above, the Court will
analyze this problem in the instant case.
107. The Court has established that the appeal for legal protection, because of its
nature, is “the simple and brief judicial procedure whose goal is the protection of all
of the rights recognized by the constitutions and laws of the States Parties and by
the Convention.”111 Likewise, it has considered that this remedy enters the realm of
Article 25 of the American Convention, therefore it has to meet certain
requirements, including suitability and effectiveness112. It is important to analyze
the appeal for legal protection in terms of adequacy and effectiveness113, as well as
the delaying practice that it has been given in the instant case.
108. The Court notes that the Law on the Appeal for Legal Protection in Guatemala
establishes that the goal of this remedy is the development of “the guarantees and
protections of the rights inherent to the individual, enshrined in the Constitution […],
laws, and international conventions ratified by Guatemala.”114 Both the Political
Constitution of the Republic of Guatemala, as well as the Law on the Appeal for
Legal Protection indicate that the purpose of the appeal for legal protection is to
protect people against threats of violations to their rights or to restore the rulings
when violations did occur. There is no realm that is not susceptible to an appeal for
legal protection, and it will always be admissible when the acts, rulings, provisions
or laws of the authorities imply a threat, restriction or violation of the rights
guaranteed by the Constitution and the laws115.
109. In this manner, the Law on the appeal for legal protection establishes certain
requirements that are necessary to file this remedy. However, the judges are not
obligated to previously analyze the admissibility requirements. On the contrary,
once the remedy has been filed, its merits must be processed.116 The petition for the
remedy cannot be denied even when it is expressly inadmissible. The above has
facilitated an indiscriminate filing of appeals for legal protection by the accused. In
the instant case most of these appeals have been denied and declared inadmissible,
since they did not fulfill the procedural prerequisites established in the law117.
110
Cf. Case of Mack Chang v. Guatemala, supra note 18, para. 204, 206, 207, 209, 210 and 211.
111
The Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) of the American
Convention on Human Rights) Advisory Opinion OC-8/87 of January 30, 1987. Series A No. 8, para. 32.
112
Judicial Guarantees in States of Emergency (Arts. 27(2), 25(1) and 7(6) of the American
Convention on Human Rights) Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 24;
Case of Castañeda Gutman v. Mexico. Preliminary Objections, Merits, Reparations, and Costs. Judgment of
August 6, 2008. Series C No. 184, para. 78, and Case of Escher et al. v. Brazil, supra note 33, para. 196.
113
Cf. Case of Velásquez Rodríguez v. Honduras. Merits, supra note 30, para. 64 and 66; Case of
Escher et al v. Brazil, supra note 33, para. 28, and Case of Garibaldi v. Brazil, supra note 23, para. 46.
114
Article 1 of the Law on the Appeal for Legal Protection, Decree No. 1-86 of January 8, 1986
(Appendixes to teh application, appendix 70, f. 9121).
115
Article 265 of Political Constitution of the Republic of Guatemala, and Article 8 of the La won Legal
Protection, supra note 114.
116
Cf. Articles 33 and 77 a) of the Law on the Appeal for Legal Protection, supra note 113.
117
For example, the Constitutional Court turned down several appeals filed on October 26, 2000, as
they were expressly inadmissible due to being time-barred, and because the act challenged had not
caused injuries to constitutional rights. Cf. Judgment of the Constitutional Court of July 11, 2002
(Appendixes to the application, appendixes 42, 51 and 53, fs. 6303 to 6404; 7464 to 7465, and 7738 to
7739).
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