27
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
repair it, if it finds there has been a violation. 136 As was previously mentioned, the existence
of these guarantees, and by extension, of a model of exercise of control for conformity with
the Convention “constitutes one of the basic pillars, not only of the American Convention,
but also of the rule of law in a democratic society as per the Convention.” 137
92.
Likewise, it cannot be ignored that the fulfillment of the obligation to guarantee the
right to judicial protection does not correspond solely to the judges, but to all public
authorities, including the legislature, who must ensure that this type of remedy is provided
for in the law. Thus, the commitments of the States pursuant to Article 25(2) have an
intimidate relationship with the general obligation to guarantee established in Article 1(1) of
the American Convention, as well as the obligation to adopt domestic legal measures that
Article 2 of the Convention provides. The foregoing serve to guarantee that the competent
authority provided for by the legal system of the State determines the rights of any person
claiming such remedy;138 the development of the possibilities of judicial remedy;139 and that
the competent authorities shall enforce such remedies when granted. 140
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.
136
Cf. Case of Castañeda Gutman V. México. Preliminary Objections, Merits, Reparations and Costs.
Judgment of August 6, 2008. Series C No. 184, para. 100.
137
Case of Cantos V. Argentina. Merits, Reparations and Costs. Judgment of November 28, 2002. Series C
No. 97, para. 52; Case of Juan Humberto Sánchez V. Honduras. Preliminary Objections, Merits, Reparations and
Costs. Judgment of June 7, 2003. Series C No 99, para. 121; and Case of Maritza Urrutia V. Guatemala. Merits,
Reparations and Costs. Judgment of November 27, 2003. Series C No. 103, para. 117.
138
Cf. Article 25(2)(a) of the American Convention.
139
Cf. Article 25(2)(b) of the American Convention.
140
Cf. Article 25(2)(c) of the American Convention.
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