21
69.
Article 25(1) (judicial protection) of the American Convention states that “Everyone
has the right to simple and prompt recourse, or any other effective recourse, to a
competent court or tribunal for protection against acts that violate his fundamental rights
recognized by the constitution or laws of the state concerned or by this Convention, even
though such violation may have been committed by persons acting in the course of their
official duties.”
70.
From its earliest jurisprudence, the Inter-American Court identified that the American
Convention establishes the obligation that all State Parties 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” (Article 1(1)). From this general
obligation comes the right provided for in Article 25(1) of every person “to a simple and
prompt recourse, or any other effective recourse, to a competent court or tribunal for
protection against acts that violate his fundamental rights recognized by the constitution or
laws of the state concerned or by this Convention.”110 Moreover, in addition to the formal
existence of remedies, such effectiveness supposes that these provide results or responses
to the violations of rights provided for in either the Convention, Constitution, or legislation.
71.
Despite being cited by the Inter-American Court on multiple occasions, as is the case
in the present Judgment,111 these criteria have not been sufficiently developed with respect
to all of their implications, especially in regard to the fact that this recourse must protect
the people against acts that violate their rights recognized not only by domestic legislation,
but by the American Convention as well. Taking the provisions of Article 25 seriously would
lead us to establish the obligation that effective judicial remedies be provided, and that
these remedies monitor compliance not only with the laws, but also with the Constitution of
the State concerned and the American Convention itself. This is what the right to the
guarantee of fundamental rights is about.112
72.
In this scheme, through the substantive right to judicial protection,113 the law should
provide for, and the courts effectuate, a recourse that takes into account the monitoring
and controlling of compliance with the laws, the Constitution, and the treaties. In other
words, the Inter-American Court has identified this with the duty to adopt the legislative
and other type of measures to give effect to the right to judicial protection, and the duty of
all authorities to exercise control for conformity with the Constitution and the Convention.
73.
In this sense, Article 25 of the American Convention possesses an integrative
dimension of the sources of law (domestic and of the Convention) that serve as the basis for
guaranteeing judicial protection. This normative integration can result, in turn, through the
judicial institution responsible for implementing the recourse that has been put into action
110
Judicial Guarantees in States of Emergency(arts. 27.2, 25 and 8 American Convention on Human Rights).
Advisory Opinion OC-9/87 of October 6, 1987. Series to No. 9, para. 22.
111
Para. 116 of the Judgment.
112
From this perspective, the right to judicial protection is substantive, since its presence or absence, leads
respectively to the effectiveness or ineffectiveness of the fundamental rights of all individual cases; he or she who
does not have a remedy according to Article 25(1) of the American Convention, or lacks for some reason the right
to use it, could lead to the establishment of a violation of their right recognized by the Pact of San José, the
Constitution or legislation of their country; if the right to judicial protection is not identified with the fundamental
right that it guarantees, undoubtedly this is apparent in nothing less than the effectiveness and "effet utile" of the
provisions that constitute it.
113
See supra, previous footnote.