29
judgment of conviction, which propitiated and enabled the situations alluded to by the
Commission and the representatives.”144
97. With respect to the arguments of Mr. Alibux and of the Commission before this InterAmerican Tribunal concerning the violation of the right to judicial protection due to the lack
of implementation of the Constitutional Court of Suriname, as established in article 144 of
the Constitution, the Court determined that "although […] it recognizes the importance of
such bodies as protectors of constitutional mandates and fundamental rights, the American
Convention does not impose a specific model for the regulation of issues of constitutionality
and control for conformity with the Convention[.] [It also reiterated] that the obligation to
monitor the compliance of domestic legislation with the American Convention is delegated to
all bodies of the State, including its judges and other mechanisms related to the
administration of justice at all levels.”145
B) The analysis of the effective judicial remedy from the jurisprudence of the
Inter-American Court and from the integrative dimension of the rights under
Article 25 of the American Convention
98.
As I mentioned at the beginning of this opinion, I agree with the decision adopted by
the Inter-American Court. However, I consider it appropriate to comment on certain aspects
related to the integrative dimension of rights (an under-developed facet in Inter-American
jurisprudence) and its implications in a model of exercising control for conformity with the
Convention. If the Court had developed this view of Article 25 of the American Convention,
its differences with the right to appeal the judgment to a higher court under Article 8(2)(h)
of the Convention would have been brought to light, and hence, “the consequences of the
damages” caused by the violation of Article 8(2)(h) would not have necessarily been
encompassed in the alleged affectations of Article 25 of the American Convention.
99.
If these standards were to eventually be developed and applied in cases similar to
that of Mr. Alibux, at least two clear violations to the right of judicial protection would be
found.
100. First, I consider the failure to create a Constitutional Court, which is provided for by
the Constitution of Suriname, to have constituted a violation of the American Convention for
the omission in its installation and operation to allow the existence of an effective recourse
for “protection against acts that violate his fundamental rights recognized by the
constitution or laws of the state concerned or by this Convention,” as stipulated in Article
25, in relation to Articles 1(1) and 2, of the American Convention.
101. Second, I consider that from this perspective, the victim in the present case would
not, at any moment, have had access to an effective judicial remedy that would have
protected his claims for conformity with the Convention, constitutionality, and legality,
beyond the specific claim with regard to the necessity to respect the right to appeal the
judgment enshrined in Article 8(2)(h) of the American Convention. And, for that reason, in
the particular case, the process of appeal (which was eventually established to challenge the
conviction against Mr. Alibux) would not have necessarily been the appropriate remedy to
“protect” against violations of either domestic or conventional fundamental rights.
1) The failure to establish a Constitutional Court and the remedies under its jurisdiction as
an unconventional act by omission
144
Cf. Para. 106 of the Judgment.
145
Para. 124 of the Judgment.
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