36
8(2)(h), which was flagrantly violated. In this regard, it is important to note that, on
occasion, the Inter-American Court has ordered that control for conformity with the
Convention be exercised to remedy these situations. Surely, the law should have facilitated
the operation of the High Court of Justice or, if applicable, created the Constitutional Court
and given it jurisdiction to resolve matters of this sort. Therefore, the turning to an instance
to claim the unconstitutionality and non-conformity with the Convention of the absence of a
specific recourse should have translated into some response on the part of the judiciary, in
this case, perhaps by the High Court of Justice. However, the same omissions in the full
implementation of the model of constitutional control compromised the ability of the High
Court to do more and, without doubt, left Mr. Alibux in a situation of defenselessness,
thereby violating his right to judicial protection embodied in Article 25 of the American
Convention, in relation to Article 1(1) and 2 of such international instrument, in such a way
that, in the case at hand, the Inter-American System had to act in the alternative.
121. Second, viewing the right to judicial protection as a means of integrating the rights
would have shed a different light on the claims of Mr. Alibux in a model of exercising control
for conformity with the Convention.
122. As it has already been mentioned, Article 25(1) (judicial protection) of the American
Convention provides that “Everyone has the right to simple and prompt recourse, or any
other effective recourse […] for protection against acts that violate his fundamental rights
recognized by the constitution or laws of the state concerned or by this Convention […].”
123. In this case, Mr. Alibux argued before the High Court of Justice of his country that
Article 140 of the Constitution and the Indictment of Political Office Holders Act were
inconsistent with Article 14(5) of the Covenant on Civil and Political Rights and Article
8(2)(h) of the American Convention for creating a process in a sole instance before such
High Court of Justice;175 that is, he presented in a precise manner an argument of nonconformity with the Convention of the Constitution itself and the law that was applied. The
response of the High Court of Justice was to mention that “despite having binding effects on
the State, the provisions of the Covenant on Civil and Political Rights and the American
Convention on Human Rights had no direct legal effect, since a domestic court could not
establish processes of appeal that are not recognized by the law, and therefore, had to
abide by the terms set forth in Article 140 of the Constitution.”176 As can be appreciated, the
response of the High Court of Justice did not properly study the problem of conformity with
the Convention raised, rather it simply limited itself to express the reasons why domestic
courts were not able to establish processes not regulated by law, so that they had to apply
the constitutional article, whose lack of conformity with the Convention was precisely
challenged by the now victim, consequently subtracting any useful effect of the treaty
provisions.
124. In my opinion, through the substantive right to judicial protection enshrined in Article
25 of the American Convention, the legislation should provide for, and the judges
effectuate, a recourse that takes into account the monitoring and controlling of compliance
with the laws, the Constitution, and the treaties, this in terms of the Convention itself. This
case illustrates that for a judicial remedy to be effective, in light of Article 25 of the already
mentioned treaty, it must consider that the same right can have its basis both in domestic
sources and diverse international sources, in this case, the American Convention, as well as
even other international instruments.
175
Cf. Para. 117 of the Judgment.
176
Para. 118 of the Judgment.
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