23
corresponding procedure.64 Further, decisions adopted by domestic bodies that could affect human
rights should be duly substantiated; otherwise, they would be arbitrary.65
85.
The Court has also written that Article 25(1) of the Convention makes it incumbent upon
the State to offer, to all persons subject to its jurisdiction, an effective judicial remedy against acts that
violate a person’s fundamental rights, since the absence of such a remedy leaves individuals
defenseless.66 This guarantee “is one of the fundamental pillars not only of the American Convention,
but of the very rule of law in a democratic society in the terms of the Convention.”67
86.
For such a remedy to exist, it is not sufficient that it be provided by the Constitution or
by law or that it be formally recognized; rather, it must also be truly effective in establishing whether
there has been a violation of human rights and in providing redress. 68 A remedy which proves illusory
because of the general conditions prevailing in the country, or even in the particular circumstances of a
given case, cannot be considered effective.69 Moreover, for the State to be in compliance with the
provisions of Article 25(1) of the Convention, it is not enough for the resources to exist formally; instead,
they must also be effective;70 in other words, they must afford the individual a real possibility of filing a
remedy to obtain judicial protection.71
87.
As for the relationship between the right recognized in Article 25 of the Convention and
the obligations set forth in articles 1(1) and 2 thereof, the Court has written that:
64
I/A Court H.R. Case of Yatama v. Nicaragua. Preliminary Objections, Merits, Reparations and Costs. Judgment of
June 23, 2005. Series C No. 127, par. 148; IACHR, Report No. 83/09, Case 11,732, Merits, Horacio Anibal Schillizzi Moreno,
Argentina, August 6, 2009, par. 53
65
Cf. I/A Court H.R. Case of Yatama v. Nicaragua. Preliminary Objections, Merits, Reparations and Costs. Judgment of
June 23, 2005. Series C No. 127, par. 152.
66
I/A Court H.R. Case of Yatama v. Nicaragua. Preliminary Objections, Merits, Reparations and Costs. Judgment of
June 23, 2005. Series C No. 127, par. 167.
67
See, inter alia, I/A Court H.R. Case of Castillo Páez v. Peru. Merits. Judgment of November 3, 1997. Series C No. 34,
par. 82; Case of Claude Reyes et al. v. Chile. Merits, Reparations and Costs. Judgment of September 19, 2006. Series C No. 151,
par. 131; Case of Castañeda Gutman v. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 6,
2008. Series C No. 183, par. 78.
68
See, inter alia, I/A Court H.R. 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, par. 24; I/A Court H.R. Case of the “Five
Pensioners” v. Peru. Merits, Reparations and Costs. Judgment of February 28 2003. Series C No. 98, par. 136; IACHR, Report No.
30/97, Case 10,087, Gustavo Carranza, Argentina, September 30, 1997, par. 74; IACHR, Report No. 48/00, Case 11,166, Walter
Humberto Vásquez Vejarano, Peru, April 13, 2000, par. 84; IACHR, Report No. 83/09, Case 11,732, Merits, Horacio Anibal
Schillizzi Moreno, Argentina, August 6, 2009, par. 58
69
See, inter alia, I/A Court H.R. Case of Baldeón García v. Peru. Merits, Reparations and Costs. Judgment of April 6,
2006. Series C No. 147, par. 145; Case of Almonacid Arellano et al. v. Chile. Preliminary Objections, Merits, Reparations and
Costs. Judgment of September 26, 2006. Series C No. 154, par. 111; IACHR, Report No. 100/01, Case 11,381, Milton García
Fajardo et al., Nicaragua, October 11, 2001, par. 81
70
See, inter alia, I/A Court H.R. Case of Tibi v. Ecuador. Judgment of September 7, 2004. Series C No. 114, par. 131;
Case of Maritza Urrutia. Judgment of November 27, 2003. Series C No. 103, par. 117; and Case of Juan Humberto Sánchez.
Judgment of June 7, 2003. Series C No. 99, par. 121; IACHR, Report No. 133/99, Case 11,725, Carmelo Soria Espinoza, Chile,
November 19, 1999, par. 88.
71
I/A Court H.R. Case of Yatama v. Nicaragua. Preliminary Objections, Merits, Reparations and Costs. Judgment of
June 23, 2005. Series C No. 127, par. 169.