22
when a State has ratified an international treaty such as the American Convention, its judges, as part of
the State, are also bound by such Convention. This forces them to see that all the effects of the
provisions embodied in the Convention are not adversely affected by the enforcement of laws which are
contrary to its object and purpose and that have not had any legal effects since their inception. In other
words, the Judiciary must exercise an ex officio “conventionality control” between the domestic legal
provisions which are applied to specific cases and the American Convention on Human Rights, within
their respective spheres of competence and the corresponding procedural regulations. In this task, the
judges and organs for the administration of justice must take into account not only the treaty, but also
its interpretation by the Inter-American Court, as the final interpreter of the American Convention.62
81.
In view of the above, the Commission finds that the State violated the principle of equal
justice and non-discrimination, recognized in Article 24 of the American Convention, read in conjunction
with the obligations to respect and ensure the rights, as set forth in articles 1(1) and 2 of the
Convention, to the detriment of Ángel Alberto Duque.
C.
Rights to judicial guarantees and to judicial protection (Articles 8(1) and 25(1) of the
American Convention), read in conjunction with the obligation to respect rights
(Article 1(1) of the American Convention).
82.
Article 8(1) of the American Convention reads as follows:
1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by
a competent, independent, and impartial tribunal, previously established by law, in the
substantiation of any accusation of a criminal nature made against him or for the determination
of his rights and obligations of a civil, labor, fiscal, or any other nature.
83.
Article 25(1) of the American Convention provides that:
1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a
competent court or tribunal for protection against acts that violate his fundamental rights
recognized by the constitution or laws of the state concerned or by this Convention, even though
such violation may have been committed by persons acting in the course of their official duties.
84.
As for the scope of the right to judicial protection, both the Commission and the Court
have held that judicial protection applies not only with respect to the rights contained in the
Convention, but also those recognized by a State’s Constitution and laws.63 Further, as Article 8(1)
provides, when determining a person’s rights and obligations of a criminal, civil, labor, fiscal or any other
nature, “due guarantees” must be observed that ensure the right to due process, in accordance with the
62
I/A Court H.R., Case of Furlan and Family v. Argentina. Preliminary Objections, Merits, Reparations and Costs.
Judgment of August 31, 2012. Series C No. 246, par. 303; I/A Court H.R., Case of Boyce et al. v. Barbados. Preliminary Objection,
Merits, Reparations and Costs. Judgment of November 20, 2007. Series C No. 169, par. 78; I/A Court H.R. Case of Almonacid
Arellano et al. v. Chile. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 26, 2006. Series C No.
154, par. 124.
63
See, inter alia, I/A Court H.R. Case of the Dismissed Congressional Employees (Aguado Alfaro et al) v. Peru.
Preliminary Objections, Merits, Reparations and Costs. Judgment of November 24, 2006. Series C No. 158, par. 122; Case of
Claude Reyes et al. v. Chile. Merits, Reparations and Costs. Judgment of September 19, 2006. Series C No. 151, par. 128; Case of
Yatama v. Nicaragua. Preliminary Objections, Merits, Reparations and Costs. Judgment of June 23, 2005. Series C No. 127, par.
167; and IACHR, Report No. 27/09, Merits, Case 12,249, Jorge Odir Miranda Cortez et al, El Salvador, March 20, 2009, par. 43.