given that eight years passed since the body charged with constitutional control
deemed the executive decrees to be unconstitutional, since the proceeding observed
by the Executive Branch to separate the plaintiff from the ranks of the Army was in
violation of due process.” “If the [State] considers that due to constitutional
provisions the action does not have retroactive effect, then it is its obligation to carry
out a constitutional reform to protect the rights recognized in the judgment of the
tribunal. Nevertheless, far from this, the government limited itself to stating that
there is nothing to fulfill and that its decrees are in force.” “In so doing, the State
has abandoned the alleged victim without having carried out any actions to establish
legal or administrative mechanisms that would allow for the domestic laws to be
adapted so that the remedies are effective,” which has violated Article 2 of the
Convention. It should be noted that later, the representatives did not take a position
on the alleged violation of Article 2 of the American Convention, neither at the public
hearing nor in their final arguments.
114.
On its behalf, the State rejected the argument regarding the violation of
Article 2 of the Convention, and it noted that to argue a violation of this provision is
rushed, incoherent, and not very cautious in both the resolution of the Constitutional
Tribunal and the judgment of the Constitutional Tribunal, which are still unfolding the
effects of its legal compliance. It added that this provision recognizes not only the
obligation to adopt norms, but also, in general, measures of all character—
institutional or economic—to ensure effective compliance of the Convention. In this
regard, it noted that “the State is in the process of adopting legislative measures to
harmonize with the constitution in the National Assembly and in producing legal
research by the teams of the Subsecretariat of Normative Development of the
Ministry of Justice and Human Rights.” Therefore, the process of regulatory
harmonization with the Constitution should be taken into account, as well as that the
international human rights instruments are incorporated in all procedural and
substantive reforms.
Considerations of the Court
115. The Court notes that the representatives limited themselves exclusively in
their brief of pleadings and motions upon formulating arguments without offering
relevant evidence to support the existence of an alleged violation of Article 2 of the
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Convention. Moreover, in their final brief, the representatives did not address the
matter. Given the foregoing, the Court dismisses said argument for lack of evidence.
In addition, the Court already substantively ruled on the failure to execute the
judgment in the corresponding section (supra VI. C. b)).
2) Regarding the alleged violation of Article 24 of the American Convention.
Arguments of the parties
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The general duty of the State to adapt its domestic law to the provisions of the Convention to
guarantee the rights enshrined thereof, provided for in Article 2, which involves action on two fronts. On
the one hand, elimination of rules and practices of any kind involving violations of the guarantees under
the Convention. On the other hand, the issuance of rules and the development of practices leading to
effective enforcement of those guarantees. Cf. Case of Castillo Petruzzi et to V. Peru, supra note 71, para.
207, and Case of Reverón Trujillo V. Venezuela. Preliminar Objection, Merits, Reparations and Costs.
Judgment of June 30, 2009. Series C No. 197, para. 60.
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