-10It 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.
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.24 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 (paras. 18-21).
26.
Shortly after the above-mentioned cases of Genie Lacayo and Caballero
Delgado and Santana, the Inter-American Court, for the first time in Castillo Páez v.
Peru (judgment on merits of November 2, 1997), defined the content and scope of
Article 25 of the Convention, which, it concluded had been violated in relation to
Article 1(1) thereof, by the defendant State. In the words of the Court, the provision
contained in Article 25 on the right to effective recourse to a competent national
court or tribunal “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" (para. 82).25
27.
Since then, this has been the Court's position in that regard, reiterated in its
judgments on merits in Suárez Rosero v. Ecuador (judgment of November 12, 1997,
para. 65), Blake v. Guatemala (judgment of January 24, 1998, para. 102), Paniagua
Morales et al. v. Guatemala (judgment of March 8, 1998, para. 164), Castillo Petruzzi
et al. v. Peru (Judgment of May 30, 1999, para. 184), Cesti Hurtado v. Peru
(judgment of September 29, 1999, para. 121), the "Street Children" (Villagrán et al.)
v. Guatemala (judgment of November 19, 1999, para. 234), Durand and Ugarte v.
Peru (judgment of May 28, 1999, para. 101), Cantoral Benavides v. Peru (judgment
of August 18, 2000, para. 163), Bámaca Velásquez v. Guatemala (judgment of
November 25, 2000, para. 191), the Mayagna (Sumo) Awas Tingni Community v.
Nicaragua (judgment of August 31, 2001, para. 112), Hilaire, Constantine and
Benjamin et al. v. Trinidad and Tobago (judgment of June 21, 2002, para. 150),
Cantos v. Argentina (judgment of November 28, 2002, para. 52), Juan Humberto
Sánchez v. Honduras (judgment of June 7, 2003), Maritza Urrutia v. Guatemala
(judgment of November 27, 2003, para. 117), the 19 Tradesmen v. Colombia
Rights began to recognize the autonomous nature of Article 13. Finally, after years of hesitation and
oscillation, in its recent judgment in Aksoy v. Turkey of 18 December 1996 (paragraphs 95-100), the
European Court determined that an "autonomous" violation of Article 13 of the European Convention had
occurred.
24
.
The question of the effectiveness of local remedies is intimately linked to the administration of
justice and to the action of the competent national organs to redress the violations of the protected rights.
25
.
Emphasis enhanced.
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