6
Human Rights (Articles 13 and 25, respectively), as well as to the United Nations
Covenant on Civil and Political Rights (Article 2(3)). Under the European Convention
on Human Rights, in particular, it has generated a considerable case-law, xv apart
from a dense doctrinal debate.
20.
It could be argued that, for Article 25 of the American Convention to have
effects vis-à-vis acts of the Legislative Power, for example, the incorporation of the
American Convention into the domestic law of the States Parties would be required.
Such incorporation is undoubtedly desirable and necessary, but, by the fact of not
having incorporated it, a State Party would not thereby be dispensed from applying
always the judicial guarantee stipulated in Article 25. Such guarantee is intimately
linked to the general obligation of Article 1(1) of the American Convention, which, in
turn, confers functions of protection onto the domestic law of the States Parties.
21.
Articles 25 and 1(1) of the Convention are mutually reinforcing, in the sense
of securing the compliance with one and the other in the ambit of domestic law.
Articles 25 and 1(1) require, jointly, the direct application of the American
Convention in the domestic law of the States Parties. In the hypothesis of alleged
obstacles of domestic law, Article 2 of the Convention comes into operation,
requiring the harmonization with the Convention of the domestic law of the States
Parties. These latter are obliged, by Articles 25 and 1(1) of the Convention, to
establish a system of simple and prompt local remedies, and to give them effective
application. xvi If de facto they do not do so,
due to alleged lacunae or
insufficiencies of domestic law, they incur into a violation of Articles 25, 1(1) and 2
of the Convention.
22.
This is clearly illustrated by the present case. If the Legislative and Judicial
Powers were to give effective application, at domestic law level, to those norms of
the Convention, the situation which concerns us would be distinct today. The
principle of legality does not exhaust itself in the "sandinista legality", as the military
legislation would appear to intend xvii in the present case; for a State Party to the
American Convention, the principle of legality requires the faithful compliance with
the conventional precepts as well as the harmonization of national laws with such
precepts.
23.
This understanding leads to a revision of the decision, by the Inter-American
Court, in the Judgment on the merits (paragraphs 72 and 86), of the express nonapplication of "the sandinista juridical conscience" in the military courts in the
present case. As the decree n. 591 itself determines that the evaluation of evidence
xv.
At its beginnings, such case-law sustained the "accessory" character of Article 13 of the European
Convention, seen - as from the eighties - as guaranteeing a subjective individual substantive right.
Gradually, in its judgments in the cases of Klass versus Germany (1978), Silver and Others versus United
Kingdom (1983), and Abdulaziz, Cabales and Balkandali versus United Kingdom (1985), the European
Court of Human Rights began to recognize the autonomous character of Article 13. Finally, after years of
hesitation and oscillations, the European Court, in its recent judgment, of 18 December 1996, in the case
of Aksoy versus Turkey (paragraphs 95-100), determined the occurrence of an "autonomous" violation of
Article 13 of the European Convention.
xvi.
The question of the effectiveness of local remedies is intimately linked to the administration of
justice itself and to the operation of the competent national organs to redress the violations of the
protected rights.
xvii.
E.g., decree n. 591, Articles 11 and 17.