21
relation to the absence of an effective judicial remedy to enforce the right to consular
assistance,108 and regarding the lack of due diligence in the investigations,109 respectively.
68.
While the jurisprudence is consistent up to this point, and the difference between the
remedies that are provided for both in Article 8(2)(h), as well as Article 25 of the American
Convention, seem, at least, prima facie evident, there exists, undoubtedly, a gray area
where these distinctions may not be as easy to realize, especially when you take into
account the broad range of expectations that the recourse framed in Article 25 of the
Convention can have, in comparison with the diverse claims that can be substantiated in
domestic jurisdictions.
III. THE INTEGRATIVE DIMENSION OF THE RIGHTS IN LIGHT OF ARTICLE 25 OF THE
AMERICAN CONVENTION
A. The right to judicial protection as an integrative instrument of fundamental rights
from both domestic sources and the Convention
69.
Article 25(1) (judicial protection) of the American Convention states that “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.”
70.
From its earliest jurisprudence, the Inter-American Court identified that the American
Convention establishes the obligation that all State Parties undertake to “respect the rights
and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the
free and full exercise of those rights and freedoms” (Article 1(1)). From this general
obligation comes the right provided for in Article 25(1) of every person “to a 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.”110 Moreover, in addition to the formal
existence of remedies, such effectiveness supposes that these provide results or responses
to the violations of rights provided for in either the Convention, Constitution, or legislation.
71.
Despite being cited by the Inter-American Court on multiple occasions, as is the case
in the present Judgment,111 these criteria have not been sufficiently developed with respect
to all of their implications, especially in regard to the fact that this recourse must protect
the people against acts that violate their rights recognized not only by domestic legislation,
but by the American Convention as well. Taking the provisions of Article 25 seriously would
lead us to establish the obligation that effective judicial remedies be provided, and that
these remedies monitor compliance not only with the laws, but also with the Constitution of
108
Cf. Case of Vélez Loor V. Panamá. Preliminary Objections, Merits, Reparations and Costs. Judgment of
November 3, 2010. Series C No. 218, para. 254.
109
Cf. Case of Mendoza et al. V. Argentina. Preliminary Objections, Merits and Reparations. Judgment of May
14, 2013. Series C No. 260, para. 227.
110
Judicial Guarantees in States of Emergency(arts. 27.2, 25 and 8 American Convention on Human Rights).
Advisory Opinion OC-9/87 of October 6, 1987. Series to No. 9, para. 22.
111
Para. 116 of the Judgment.
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