14
applicable, punish those responsible for such acts, or collaborating with other States aiming
in that direction, in what constitutes “a collective guarantee mechanism.” 66
43.
Finally, recently, the Inter-American Court has determined that this remedy must
provide means to an adequate judicial review. This occurs when the judicial body reviews all
submissions and arguments submitted to it concerning the contested decision or act,
without declining jurisdiction to resolve or determine the facts. By contrast, it has noted
that there is no judicial review if the court is unable to determine the primary purpose of the
dispute, as may occur in cases where it is considered limited by the factual or legal
determinations carried out by another body that would have rendered a final decision in the
case.67
B) The right to judicial protection against acts that violate the fundamental rights
recognized by the Constitutional, legislation, or the Convention
44.
An important aspect in the Inter-American Court is the fact that Article 25(1) of the
Pact of San José has established, in broad terms, that the court proceedings must not only
protect and guarantee the respect of the rights established in the Convention, but also of
those that are recognized by the Constitution or by legislation.68 This clearly is linked to
Article 29(b) of the Pact of San José, according to which minimum guarantees are
established that are susceptible to a broader application by other provisions of a
constitutional or national nature, which the American Convention makes its own when it
grants them the same level of guarantee that it grants the rights it establishes—ideally, an
effective, prompt, and simple remedy—; and, as a consequence, assuming as its own, the
extension of those norms of greater protection that were once foreign to it.
45.
In the Advisory Opinion 9/87, the Inter-American Court has established that the Pact
of San José provides some evidence to clarify the fundamental characteristics that are to be
had by the guarantees of rights. In this respect, at that time, the Inter-American Court
noted that the assessment must stem from the obligation in the American Convention of the
States Parties to “respect the rights and freedoms recognized (in the Convention ) and to
ensure to all persons subject to their jurisdiction the free and full exercise of those rights
and freedoms” pursuant to the provisions of Article 1(1) of the American Convention. From
this general obligation is derived the right of every person, set out in Article 25(1), “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.” 69
46.
Thus, it is in this manner that Article 25(1) of the Pact of San Jose provides that the
guarantee established therein applies not only to the rights contained in the American
Convention, but also to those that are recognized by the Constitution or by law. 70 While this
66
Case of La Cantuta V. Perú. Merits, Reparations and Costs. Judgment of November 29, 2006 Series C No.
162, para. 160.
67
Cf. Case of Barbani Duarte et al. V. Uruguay. Merits Reparations and costs. Judgment of October 13,
2011. Series C No. 234, para. 204
68
Cf. 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. 23.
69
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.
70
Cf. 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. 23.