42
of race, color, sex, language, religion, political or other opinion, national or social origin,
economic status, birth, or any other social condition.
2.
For the purposes of this Convention, "person" means every human being.
Article 2. Domestic Legal Effects
Where the exercise of any of the rights or liberties referred to in Article 1 is not already
ensured by legislative or other provisions, the States [P]arties undertake to adopt, in
accordance with their constitutional processes and the provisions of this Convention, such
legislative or other measures as may be necessary to give effect to those rights or liberties.
166. The Court has maintained that States Parties to the Convention may not order
measures that violate the rights and freedoms recognized therein32. Neither may
States fail to take measures of a legislative nature “or of any other nature that might
be necessary to make such rights and freedoms effective”, in the terms of Article 2
of the Convention.
These measures are necessary to “ensure [the] free and full
exercise” of these rights and freedoms, in the terms of Article 1.1 of this instrument.
167. In the Garrido and Baigorria case (1998)33, the Court clearly stated that the
American Convention “establishes the obligation of each State Party to adapt
domestic law to the provisions of that Convention, so as to ensure the rights
embodied therein”. In the same judgment, the Court said that
[t]his obligation of the State Parte implies that the domestic legal measures must be
effective. This means the State must adopt all measures necessary so that provisions
contained in the Convention have full force and effect within its domestic legal system.
Those measures are effective when the community, in general, adapts its conduct to
conform to the principles of the Convention and when, if those principles are breached,
the penalties provided for therein are effectively applied.
168. This Court has already stated that the Peruvian State violated Article 25 of
the Convention (supra 133) which, in its paragraph 2.c, establishes the commitment
of the States to “ensure that the competent authorities shall enforce… [simple and
rapid] remedies when granted” to protect individuals against acts that violate their
fundamental rights. The Court considers that the Peruvian State has not ensured
Gustavo Cesti Hurtado’s enjoyment of his rights and freedoms by refusing, through
its military authorities, to comply with a legitimate order issued by a competent
tribunal, nor has it adopted the necessary measures to this end.
169. With regard to the allegations of the State that the Court has attacked the
sovereignty of Peru in various judgments pronounced in cases brought against the
State, the Court considers it relevant to repeat what it stated in the judgment on
preliminary exceptions in the Castillo Petruzzi et al case:34
32.
Suárez Rosero case, Judgment of November 12, 1997, Series C, Nº 35, para. 97.
33.
Garrido and Baigorria case, Reparations (Article 63.1 of the American Convention on Human
Rights), Judgment of August 27, 1998. Series C No 39, para. 68 and 69.
34.
Castillo Petruzzi et al case, Preliminary Objections, Judgment of September 4, 1998. Series C No.
41, para. 101 and 102.
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