9
considered, since the Inter-American System has a Commission which acts as an initial
instance, which is the channel through which the Convention gives the individual the right to
move forward with an initial impetus that gets the wheels spinning before the international
system of protection of human rights, a procedure that must be exhausted. 32 The dynamics
and reality of the operation of the Inter-American Commission has meant that, to date,
relatively few cases before the Inter-American Tribunal continue to be filed.
29.
In conclusion, in accordance with Article 46(1)(a) of the American Convention, which
provides that “[a]dmission by the Commission of a petition […] shall be subject to the
following requirement[…] that the remedies under domestic law have been pursued and
exhausted,” it is relevant to consider that the initial petition, if it is not manifestly
inadmissible at the time of the preliminary assessment, it may be subject to the objections
of the parties, including the exhaustion of domestic remedies (and at all times the
procedural equality and adequate defense must be respected); thus the exhaustion of those
remedies must be verified and updated in a definitive manner up until the Commission
renders a decision, within a reasonable period, on the admissibility of the petition, that is,
when the Report on Admissibility is issued or when declared inadmissible.
SECOND PART
THE DIMENSIONS OF THE RIGHT TO JUDICIAL PROTECTION (ARTICLE 25 OF THE
AMERICAN CONVENTION)
I. THE JURISPRUDENCE OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS
A) The right to guarantee access to a judicial remedy that is effective, adequate,
prompt, and simple
30.
Article 25(1) of the American Convention guarantees the existence of a simple,
prompt, and effective remedy before a competent court or tribunal. 33 The Inter-American
Court has established that, in accordance with the Pact of San José, States Parties are
obliged to provide effective judicial remedies to victims of human rights violations (Art.
25),34 remedies that must be substantiated in accordance with the rules of due process of
law (Article 8(1)),35 all within the general obligation, responsibility of the States, to
guarantee the free and full exercise of the rights recognized by the Pact of San José to all
persons under its jurisdiction (Article 1(1)).36
31.
The effectiveness means that, in addition to the formal existence of remedies, these
provide results or responses to the violations established in either the American Convention,
the Constitution, or in the legislation.37 That is, the Inter-American Court has established
32
Matter of Viviana Gallardo et al. Series to No. 101, Order of November 13, 1981, para. 23.
33
Cf. Case of Velásquez Rodríguez V. Honduras. Merits. Judgment of July 29, 1988, Series C No. 4, para.
63; and Case of Mejía Idrovo V. Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of July
5, 2011. Series C No 228. para. 91.
34
Cf. Case of Fairén Garbi and Solís Corrales V. Honduras. Preliminary Objections. Judgment of June 26,
1987. Series C No. 2, para. 90; and Case of Massacres de Río Negro V. Guatemala. Preliminary Objection, Merits,
Reparations and Costs. Judgment of September 4, 2012. Series C. No. 250, para. 191.
35
Cf. Case of Godínez Cruz V. Honduras. Preliminary Objections. Judgment of June 26, 1987. Series C No. 3,
para. 92; and Case of Mohamed V. Argentina. Preliminary Objection, Merits, Reparations and Costs. Judgment of
November 23, 2012. Series C No. 255, para. 82.
36
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.