36
conformity with the Convention of the Constitution itself and the law that was applied. The
response of the High Court of Justice was to mention that “despite having binding effects on
the State, the provisions of the Covenant on Civil and Political Rights and the American
Convention on Human Rights had no direct legal effect, since a domestic court could not
establish processes of appeal that are not recognized by the law, and therefore, had to
abide by the terms set forth in Article 140 of the Constitution.”176 As can be appreciated, the
response of the High Court of Justice did not properly study the problem of conformity with
the Convention raised, rather it simply limited itself to express the reasons why domestic
courts were not able to establish processes not regulated by law, so that they had to apply
the constitutional article, whose lack of conformity with the Convention was precisely
challenged by the now victim, consequently subtracting any useful effect of the treaty
provisions.
124. In my opinion, through the substantive right to judicial protection enshrined in Article
25 of the American Convention, the legislation should provide for, and the judges
effectuate, a recourse that takes into account the monitoring and controlling of compliance
with the laws, the Constitution, and the treaties, this in terms of the Convention itself. This
case illustrates that for a judicial remedy to be effective, in light of Article 25 of the already
mentioned treaty, it must consider that the same right can have its basis both in domestic
sources and diverse international sources, in this case, the American Convention, as well as
even other international instruments.
125. Although “the American Convention does not impose a specific model for the
regulation of issues of constitutionality and control for conformity with the Convention,” 177
the various systems of judicial protection of the rights at the domestic level must provide
effective means by which to resolve this sort of disputes, whatever its denomination and
body of control that determines it. Pursuant to this integrative dimension of the rights set
forth in Article 25 of the American Convention, a response as the one expressed by the High
Court of Justice, which is that although the Convention is binding, “it has no legal effect,”
makes it impossible to defend rights in court at the domestic level, and it suppresses an
indication of effectiveness to the rights enshrined therein, ignoring, in fact, the rules of
interpretation that the Convention itself establishes in its Article 29.
126. To avoid such situations, the Inter-American Court has emphasized that judges and
other bodies involved in the administration of justice at all levels have a duty to exercise ex
officio a form of “control for conformity” between domestic legal provisions and the
American Convention, obviously within the framework of their respective competences and
the corresponding procedural regulations.178 From my perspective, it is clear that this
control must be, in essence, effective and integrative of domestic and treaty rights, as
established in Article 25(1) of the Convention, in conjunction with Articles 1(1), 2, and
29(b) therein, which gives it a unique scope and characterization of control for conformity
with the Convention. However, regardless of what it is called or how it regulated or to what
extent or manner each domestic judge or court exercises it, this control must seek to
ensure that it is effective, and not an illusory recourse doomed to fail or that subtracts from
the effectiveness of the American Convention and, in general, the Inter-American corpus
juris.
176
Para. 118 of the Judgment.
177
Para. 124 of the Judgment.
178
Cf. Case of Almonacid Arellano et al. V. Chile. Preliminary Objections, Merits, Reparations and Costs.
Judgment of September 26, 2006. Series C No. 154, para. 124; and Case of Castañeda Gutman V. México.
Monitoring of Compliance with Judgment. Order of the Court of August 28, 2013, considering clause 23.
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos