34
in the Convention to all persons under their jurisdiction (Article 1(1)).109 This guarantee “is
one of the basic pillars, not only of the American Convention, but also the rule of law in a
democratic society in the sense of the Convention.”110 Otherwise, that is to say, the
existence of such effective recourses places the person in a status of lack of defense,111
particularly when facing the punitive power of the State.
129.
Likewise, the Court has pointed out that for the State to comply with the provisions
of Article 25 of the Convention, it is not enough for the recourses to exist formally, but such
recourses must be effective in the terms of such provision.112 Such effectiveness involves,
apart from the formal existence of the recourses, that it give results or answers to the
violations of the rights set forth in Convention, in the Constitution or under the law.113 The
Court has reiterated that such obligation involves that the recourses shall be suitable to
attack the violation and that its application by the competent authority shall be effective.114
To that end, the recourses that are deceptive, due to the general conditions of the country
or even due to the particular circumstances of a given case, shall not be considered
effective115. For example, this may happen when practice or any other situation denying
justice has shown that they are not useful.116
130.
Likewise, Article 25 is closely linked to the general obligation under Articles 1(1)
and 2 of the Convention, attributing functions of protection to the domestic law of the State
Parties, which results from the fact that the State is responsible for designing and providing
an effective recourse, as well as to ensure the due application of such recourse by the
judicial authorities.117 In that sense, according to Article 25 of the Convention, the domestic
legislation shall assure due application of effective recourses before the competent
authorities in order to protect all persons under its jurisdiction against any acts violating
109
Cf. Case of Velásquez Rodríguez, supra note 9, para. 91; Case of Anzualdo Castro v. Peru. Preliminary
Objections, Merits, Reparations, and Costs. Judgment of September 22, 2009. Series C No. 202, para. 122, and
Case of Yvon Neptune, supra note 46, para. 77.
110
Cf. Case of Castillo Páez v. Peru. Merits. Judgment November 3, 1997. Series C No. 34, para. 82; Case of
Reverón Trujillo, supra note 12, para. 59, and Case of Castañeda Gutman, supra note 56, para. 78.
111
Cf. Case of Palamara Iribarne, supra note 47, para. 183.
112
Cf. Case of Ximenes Lopes v. Brasil. Preliminary Objections. Judgment of November 30, 2005. Series C
No. 139, para. 4; Case of Escher et al., supra note 11, para. 196, and Case of Castañeda Gutman, supra note 56,
para. 78.
113
Cf. Case of the Constitutional Court v. Peru. Merits, Reparations, and Costs. Judgment of January 31,
2001. Series C No. 71, para. 90; Case of Acevedo Buendía et al.(“(“Discharged and Retired Employees of the Office
of the Comptroller), supra note 9, para. 69, and Case of Bayarri, supra note 43, para. 102.
114
Cf. Case of Acosta Calderón v. Ecuador. Merits, Reparations, and Costs. Judgment on June 24, 2005.
Series C No. 129, para. 93; Case of Escher et al., supra note 11, para. 196, and Case of Claude Reyes et al., supra
note 44, para. 131.
115
Cf. 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 A No. 9, para. 24; Case of Acevedo Buendía et
al.(“(“Discharged and Retired Employees of the Office of the Comptroller), supra note 9, para. 69, and Case of
Reverón Trujillo, supra note 12, para. 61.
116
Cf. Case of Ivcher Bronstein, supra note 70, para. 137; Case of Acevedo Buendía et al.(“Discharged and
Retired Employees of the Office of the Comptroller”), supra note 9, para. 69, and Case of Acevedo Jaramillo et al.v.
Peru. Preliminary Objections, Merits, Reparations, and Costs. Judgment of February 7, 2006. Series C No. 144,
para. 213.
117
Cf. Case of the “Street Children” (Villagrán-Morales et al.) v. Guatemala. Merits. Judgment of November
19, 1999. Series C No. 63, para. 237; Case of Reverón Trujillo, supra note 12, para. 60, and Case of the Yakye Axa
Indigenous Community v. Paraguay. Merits, Reparations, and Costs. Judgment of June 17, 2005. Series C No. 125,
para. 99.
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