motions brief, since it has verified that no legal arguments were presented that would make it
possible to specifically establish the lack of suitability and effectiveness of the extraordinary federal
appeal or of the motion for reconsideration of dismissal of appeal filed by Mr. Gorigoitía's defense
counsel.
B.2 Duty to adopt domestic legal effects and the federal clause
55. The Court has found that Article 279 of the Convention establishes the general duty of the
States Parties to adapt their domestic laws to its provisions in order to ensure the rights that it
recognizes. This duty involves the adoption of two types of measures. On the one hand, the
elimination of norms and practices of any nature that entail a violation of the guarantees
established in the Convention; on the other hand, the enactment of laws and the implementation
of practices leading to the effective observance of such guarantees.80 It is precisely with regard to
the adoption of these measures that the Court has recognized that all the authorities of a State
Party to the Convention have the obligation to exercise review of compliance with human rights
conventions,81 so that the application and interpretation of domestic law is consistent with the
state’s international obligations in the area of human rights.82 As regards Article 28, the Court has
established that “case law, which has stood unchanged for more than a century, holds that a state
cannot plead its federal structure to avoid complying with an international obligation.”83
56. In this case, the Court ruled that the literal meaning of the pertinent rules in the Code of
Criminal Procedure of the Province of Mendoza, applicable at the time of the events, through
cassation appeal, made it impossible for a higher court to review matters of fact and/or evidence
in the case of Mr. Gorigoitía (supra paras. 51 and 53). The Court therefore concluded that the
state failed to comply with the obligation to comprehensively review the judgment, as required by
Article 8(2)(h) of the Convention, read in conjunction with Article 1(1) of the same instrument.
For the same reasons, the Court concludes that the state failed to comply with its obligations
under Article 2 of the Convention. The Court observes that the state did not dispute that the Code
of Criminal Procedure of the Province of Mendoza applied at the time of the facts places very strict
requirements on cassation appeals, contrary to the provisions of Article 8(2)(h) of the Convention.
What it argued is that the courts must apply the doctrine set forth in the "Casal ruling" in terms
of review of a conviction, and that there were subsequent state acts aimed at ensuring
comprehensive review in matters of cassation appeals. In this regard, while recognizing the
importance of the “Casal ruling,” the Court concludes that the state failed to comply with the
obligation set forth in Article 2 of the American Convention, read in conjunction with Article 8(2)(h)
of the same instrument.
57. Regarding the representatives' argument related to the alleged violation of Article 28 of the
Convention, the Court recalls that an argument regarding the possible non-observance of
obligations arising from Article 28 of the Convention must refer to a fact with sufficient importance
79
Article 2 of the Convention establishes that: “Where the exercise of any of the rights or freedoms referred to in
Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance
with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be
necessary to give effect to those rights or freedoms.”
80
Cf. Case of Castillo Petruzzi et al. v. Peru. Merits, Reparations, and Costs. Judgment of May 30, 1999. Series C
No. 52, para. 207, and Case of Mendoza et al. v. Argentina. Preliminary Objections, Merits, and Reparations. Judgment of
May 14, 2013. Series C No. 26, para. 293.
81
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 Órdenes Guerra et al. v. Chile. Merits, Reparations, and
Costs. Judgment of November 29, 2018. Series C No. 372, para. 135.
82
Cf. Case of Radilla Pacheco v. Mexico. Preliminary Objections, Merits, Reparations, and Costs. Judgment of
November 23, 2009. Series C No. 209, para. 340, and Case of Andrade Salmón v. Bolivia. Merits, Reparations, and Costs.
Judgment of December 1, 2016. Series C No. 330, para. 93.
83
Case of Garrido and Baigorria v. Argentina. Reparations and Costs. Judgment of August 27, 1998. Series C No.
39, para. 46.
18