3
violating Article 25 of the American Convention, in connection with Articles 1(1) and 2
thereof, given that the body and the recourses that constitutionally are necessary for the
protection of fundamental rights of national and conventional sources were not established.
And this is without acknowledging the powers and specific functions of the High Court of
Justice of Suriname, which in this case did not protect the rights established in the
Convention that Mr. Alibux alleged had been violated, which warranted international
intervention and protection. Also, there was no proper response in regard to the failure to
conform to the Convention that was alleged by the victim, in that the mere reply of the High
Court judges was that the judges could not implement an action that was not provided for
in the legislation.
10. Under such circumstances, I will divide this opinion into two parts. The first part,
concerning the preliminary objection filed by the State on the lack of exhaustion of domestic
remedies at the time of filing the petition before the Commission (paragraphs 11 to 29).
The second part will address the dimensions of the right to judicial protection under Article
25 of the American Convention, under the following headings: (i) Inter-American
jurisprudence (para. 30-46); (ii) The difference between the right to judicial protection
(Article 25) and the right to appeal the judgment to a higher court (Article 8(2)(h)) - (paras
47 to 68 ); (iii) the integrative dimension of the rights in light of Article. 25 of the American
Convention (paras 69 to 94 ); (iv) The right to judicial protection in this case (paras 95 to
126); and (v) Conclusion: the right to the guarantee of rights, as integrating dimension of
fundamental rights (of national and conventional sources) in a model that exercises control
for conformity with the Convention (paras 127 to 134).
FIRST PART
ON THE FILING OF THE PETITION BEFORE THE INTER-AMERICAN COMMISSION AND THE
RULE OF EXHAUSTION OF DOMESTIC REMEDIES
11.
In the first of the three preliminary objections that were challenged, the State
argued inter alia that the alleged victim did not exhaust domestic remedies at the time of
filing the brief submitting the case before the Inter-American Commission, given that the
judgment in the criminal process against him had not been rendered. 6
12. The brief submitting the case was received by the Commission on August 22, 2003,
being that the final judgment issued by the High Court of Justice was issued on November
5, and it was not until April 18, 2005, that the Commission transmitted the pertinent parts
of the petition of the alleged victim to the State. Moreover, the State argued as of July 18,
2005, that the case had been submitted prior to the adoption of a final decision on the
merits from the High Court of Justice and that the Admissibility Report was issued on March
9, 2007.7
13.
The Inter-American Court dismissed the preliminary objection because it essentially
considered that “the petitioner argued that the alleged violations to the right to appeal the
conviction and the rule of freedom from ex post facto law before the High Court of Justice
were unfavorably resolved by the Interlocutory Verdict of June 12, 2003 […] prior to
submitting the petition to the Commission. Consequently, in the present case, the Court
finds that, due to the absence of a mechanism by which to appeal the possible conviction,
6
Cf. para. 11 of the Judgment.
7
Cf. para. 17 of the Judgment.