27
87.
Similarly, the Inter-American Court has reiterated that the existence of a norm does
not, by itself, guarantee that its application be appropriate. It is necessary that the
application of the norms or their interpretation, both in jurisdictional practices and
manifestation of the legal order, be adapted to the same objective pursued by Article 2 of
the American Convention. In other words, the Inter-American Court has emphasized that
the judges and other bodies involved in the administration of justice at all levels have a
duty to exercise ex officio a form of “control for conformity” between domestic legal
provisions and the American Convention, obviously within the framework of their respective
competences and the corresponding procedural regulations. To perform this task, the
judiciary has to take into account not only the treaty at issue, but also the interpretation
thereof made by the Inter-American Court, which is the ultimate interpreter of the American
Convention.134
88.
Throughout the jurisprudential development in the shaping of the concept of control
for conformity with the Convention, an aspect that has resulted more important is the role
that the judges have, in their respective spheres of competence, to apply this scheme of
control in the exercise of their duties. Since the origin of the legal doctrine of control for
conformity with the Convention, it has been established that “domestic judges and courts
are bound to respect the rule of law, and therefore, they are bound to apply the provisions
in force within the legal system. But 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
purpose and that have not had any legal effects since their inception.”135
89.
The exercise of “control for conformity with the Convention” results, in part, from the
substantive interpretation of the rights of the American Convention. This substantive
interpretation of the Convention is also reflected in complying with the minimum procedural
requirements set forth within the right to judicial protection, as Article 25 of the Convention
establishes, which consists of providing effective remedies so that the remaining rights can
be guaranteed and, in turn, protected in judicial mechanisms.
90.
To consider the right to judicial protection in the integrative dimension of
fundamental rights posed by the provisions of Article 25(1) of the American Convention, in
relation to Articles 1(1), 2, and 29(b) therein, implies the existence of a model of exercise
of “control for conformity with the Convention” that allows for a broader protection at the
domestic level of the other rights protected by the American Convention.
91.
While control for conformity with the Convention has the characteristic that it may be
exercised by authorities and courts in various degrees of intensity (depending on their
competencies and legal powers), Article 25 of the American Convention clearly establishes
the right of all persons to have access to an effective judicial remedy so that a competent
authority, with jurisdiction to issue a binding decision, may determine whether or not there
has been a violation of a fundamental right claimed by the person filing the action, and that
the remedy is useful to restitute to the interested party the enjoyment of his right and to
134
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 Castañeda Gutman V. México.
Monitoring of Compliance with Judgment. Order of the Court of August 28, 2013, considering clause 23.
135
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.
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos