2
25(1) of the Pact of San José itself, on the need for the existence of "a simple and prompt
recourse" or “any other effective recourse” for "protection [of the person] against acts that
violate the fundamental rights granted by the constitution, or the laws of the State or by
this Convention.” The right to judicial protection that protects fundamental rights of a
national or conventional nature is an integral element of the rights for the protection of
these at the national level, having a significant effect on the control model of
constitutionality and control for conformity with the Convention taken by States and its
effectiveness. For this reason, judicial protection should be given independent treatment in
order to better understand its scope.
6.
In this sense, had the Inter-American Court developed this dimension of Article 25(1)
of the American Convention, most likely it would have declared a violation of that provision
autonomously, attempting not to subsume the consequences in the violation of Article
8(2)(h) as done in the Judgment3 declaring that the State did not violate Article 25, which in
turn affects the reparations and just compensation to the victim,4 in terms of Article 63(1)
of the Pact of San José.5
7.
In this regard, it is true that there is interdependence and interrelation between the
rights of the American Convention. In this case, particularly regarding the right to due
process established in Article 8 (which the Pact of San José entitles "the Right to a Fair
Trial") and the right to "judicial protection" established in Article 25, in that, in general, any
recourse must be made with respect to the minimum guarantees of due process, and hence
the interconnection between Articles 8 and 25, as established and developed by the InterAmerican Court’s jurisprudence. However, it cannot be forgotten that every right in the Pact
of San José was envisioned as an autonomous right, with their own dimension and scope,
allowing individualized interpretive developments, adding to the understanding and
configuration of the essential core of every right to achieve greater protection of persons
through regional standards, while at the same time these developments contribute by
clarifying State obligations in order for them to be respected.
8.
As such, I consider that in the case, the right to appeal the judgment to a higher
court (Art. 8(2)(h)) could have been differentiated from the diverse right to a remedy that
protects fundamental rights of national or conventional sources. This vision of the right to
the guarantee of rights, as is literally laid down in Article 25 of the American Convention,
plays the role of integrating the fundamental rights of national and conventional sources for
their adequate protection in a model exercising control for conformity with the Convention.
9.
In this case, the current Constitution of Suriname includes a Constitutional Court,
which had not been established at the time of the facts (and which has still not been
established), and thus the relevant recourses under its jurisdiction have not been
developed, which obviously, generated legal uncertainty about the mechanism and the body
that effectively protects the fundamental rights in regard to the proposals on
constitutionality and control for conformity with the convention, which may have led the
Inter-American Court to declare the failure to conform with the Convention by omission by
3
Para. 119 of the Judgment.
4
Para. 151 of the Judgment in regard to Article 25 notes: “In light of this, the Court will not order any
measure of reparation in this regard.”
5
Article 63(1). If the Court finds that there has been a violation of a right or freedom protected by this
Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was
violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the
breach of such right or freedom be remedied and that fair compensation be paid to the injured party. (italics
added)