36
115. In the instant chapter, the Court will determine if the June 12, 2003 Interlocutory
Resolution of the High Court of Justice, in which it ruled on a number of interlocutory
objections raised by the representatives of the alleged victim regarding its jurisdiction,
constituted an autonomous violation of the judicial protection contemplated in Article 25 of
the Convention, in accordance with the case law of this Court.
116. In this sense, the Inter-American Court has indicated that Article 25(1) of the
Convention establishes the obligation of the States Parties to guarantee, to all persons
subject to their jurisdiction, an effective judicial remedy against acts that violate their
fundamental rights.118 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 by law. 119 Moreover, the Court has established that
for a remedy to be effective, it is not sufficient that it be established by the Constitution or
by law, or that it be formally admissible; rather, it requires that it be truly appropriate to
determine whether a human rights violation has been committed and ensure what is
necessary to provide redress. Remedies that, owing to the general situation of the country
or even the particular circumstances of a given case, result illusory, and cannot be
considered effective.120 Based on the foregoing, the State has an obligation to not only draft
and enact an effective remedy, but to also ensure the due application of this remedy by its
judicial authorities.121
117. In the present case, during the initial phase of the trial before the High Court of
Justice, the representatives of Mr. Alibux launched five interlocutory objections challenging
its jurisdiction to continue hearing the criminal case brought against him (supra para. 45).
In this regard, two of the objections were related to the constitutionality and conformity
with the Convention of Article 140 of the Constitution and the IPOHA, to wit: i) that Article
140 of the Constitution and the IPOHA were inconsistent with Article 14(5) of the Covenant
on Civil and Political Rights and Article 8(2)(h) of the American Convention for creating a
proceeding in a sole instance before the High Court of Justice; and ii) that the indictment by
the Prosecutor General should be declared inadmissible for retroactively applying the
IPOHA, contrary to Article 131 of the Constitution.
118. In relation to the two objections described above, by Order dated June 12, 2003
(supra para. 46), the High Court of Justice ruled that: i) despite having binding effects on
the State, the provisions of the Covenant on Civil and Political Rights and the American
Convention on Human Rights had no direct legal effect, since a domestic court could not
establish processes of appeal that are not recognized by the law, and therefore, had to
abide by the terms set forth in Article 140 of the Constitution; and ii) that the IPOHA did not
contain any stipulations related to the criminalization of behavior, but rather, consisted of a
regulatory mechanism to implement a constitutional provision of a procedural nature and,
thus, there would have been no violation of the principle of legality.
118
Cf. Case of Velásquez Rodríguez. Preliminary Objections, supra, para. 91, and Case of the Displaced
Afrodescendant Communities of the Cuenca of the Río Cacarica (Operation Génesis) V. Colombia. Preliminary
Objections, Merits, Reparations and Costs. Judgment of November 20, 2013. Series C No. 270, paras. 404 and
405.
119
Cf. Case of Bámaca Velásquez V. Guatemala. Merits. Judgment of November 25, 2000. Series C No. 70,
para. 191, and Case of the Constitutional Court (Camba Campos et al.), supra, para. 228.
120
Cf. Case of Velásquez Rodríguez. Preliminary Objections, supra, para. 93, 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 A No. 9, para. 24, and Case of the Constitutional Court (Camba Campos et al.), supra, para. 228.
121
Cf. Case of the “Street Children” (Villagrán Morales et al.) V. Guatemala. Merits. Judgment of November 19,
1999. Series C No. 63, para. 237, and Case of the Constitutional Court (Camba Campos et al.), supra, para. 229.