19
question. This is part of a criminal proceeding, including the processing of the ordinary
challenges filed against the judgment.99
62.
The parallels between the remedies provided for by both rights are, at times,
evident, especially in the manner of substantiation. Both must be effective, accessible, and
must respect the framework of due process of law set forth in Article 8(1) of the American
Convention. Nevertheless, the right to judicial protection (Article 25) is broad and general,
to protect the rights recognized by the Constitution, the laws of the State concerned, or the
American Convention, while the other right (8(2)(h)) is limited to promoting the review of a
decision within the context of a process which can include the determination of rights and
obligations of both a criminal, as well as a civil, labor, fiscal, or any other nature. 100
63.
To understand the difference between the two, it is also necessary to consider that
those two recourses are not the only ones provided for in the American Convention; for
instance, on another note, we have the recourse of pardon or clemency relied upon in the
regulation of capital punishment established in Article 4(6) of the American Convention. 101
Likewise, we have the remedy set forth in Article 7(6) of the foregoing international
instrument, which provides for the right of individuals to recourse to a competent court in
order for that court to decide, without delay, on the lawfulness of his arrest or detention, or
even of the threat that his liberty will be deprived. 102
64.
The distinction between each of the remedies in relation to the provisions of Article
25 of the American Convention has not always been clear. In fact, in the beginning of InterAmerican jurisprudence, formulas combining remedies with Article 25 of the American
Convention were accepted, as was the case with respect to Article 7(6) of said international
instrument in regard to the writ of habeas corpus.103 However, the recent jurisprudential
trend is clear in that it tends to separate and confine them to their specific domains of
application. It should be noted that this task is still incomplete in various respects and, in
many cases, it is very difficult to realize these differentiations with absolute precision due to
the natural interaction or overlap of the substantive or qualifying rights, and to the different
configurations of judicial remedies in each State against which the Inter-American Court is
competent to hear cases.
65.
With respect to the right to appeal the judgment to a higher court embodied in
Article 8(2)(h), the Inter-American Court has consistently avoided, in any way, to confuse
this recourse with the provisions of Article 25, which provides for the right to an effective
legal remedy. In other words, the Inter-American Court has identified that the remedy
enshrined in Article 25 of the American Convention is not the process of appeal (usually
named that in domestic law) set forth in Article 8(2)(h) thereof.
99
Cf. Case of Herrera Ulloa V. Costa Rica. Preliminary Objections, Merits, Reparations and Costs. Judgment
of July 2, 2004. Series C No. 107, para. 159.
100
Cf. Case of de la “White Van” (Paniagua Morales et al.) V. Guatemala. Merits. Judgment of March 8, 1998.
Series C No. 37, para. 149.
101
See, for example, the decision in the Case of Fermín Ramírez V. Guatemala. Merits, Reparations and
Costs. Judgment of June 20, 2005. Series C No. 126, para. 105 to 110.
102
García Ramírez, Sergio. Due Process. Standards of the Inter-American Jurisprudence [Debido Proceso.
Criterios de la Jurisprudencia Interamericana]. México, Porrúa, 2012, págs. 49 and 50.
103
Cf. Habeaus Corpus in Emergency Situations (arts. 27(2), 25(1) and 7(6) American Convention on Human
Rights). Advisory Opinion OC-8/87 of January 30, 1987. Series to No. 8, para.32 and et seq..