39
foregoing allows us to note that, through judicial protection from this integrative perspective
of the rights provided for in Article 25(1), in relation to Articles 1(1), 2, and 29(b) of the
Convention, an authentic integration is forged at a normative and interpretative level on the
matter of fundamental rights, allowing for a view of an integrated Inter-American System
and promoting jurisprudential dialogue for the creation of regional standards on the subject
that effectuate the full enjoyment thereof.
133. The dimension of the right to the guarantee of rights constitutes an integral element
of both domestic fundamental rights, as well as those derived from the Convention, allowing
a more extensive protection in domestic courts to individuals, so that they may effectuate
their rights in a model of exercise of control for conformity with the Convention. Although it
is possible to deduce that these implications are derived from the text itself of Article 25 of
the American Convention, I consider that, to date, they have not been sufficiently explored
by this Inter-American Tribunal. Moreover, had this been addressed and developed in the
present case, it is very likely that the independent violation of Article 25 of the Convention
would have been declared.
134. Pursuant to this reading of the right to judicial protection, Mr. Alibux would not have
had, at any moment, access to an effective judicial remedy to protect his claims of
constitutionality, legality, and conformity with the Convention, beyond the specific claim in
regard to the requirement that the right to appeal the judgment enshrined in Article 8(2)(h)
of the American Convention be respected. In this sense, the Inter-American Court would
have had to declare the violation of Article 25 of the Convention, in connection to Article
1(1) and 2 of such international treaty, instead of subsuming it – as is done in the
Judgment – as a consequence of the violation declared regarding the lack of a process of
appeal before a higher court, which refers to the dimension of due process of law and not to
the duty to guarantee the rights that Article 25 of the American Convention provides for, as
an integrative element of fundamental rights of both a domestic sources and the
convention.
Eduardo Ferrer Mac-Gregor Poisot
Judge
Pablo Saavedra Alessandri
Registrar
insert in this Article a provision similar to that in paragraph 3 of Article 2° of the International Pact on Civil and
Political Rights […]”. Specialized Conference on Human Rights, San José, Costa Rica, November 7 to 22, 1969, Acts
and Documents, OEA/Ser.K/XVI/1.2, pages. 41 and 42.
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