26
constitutional and conventional fundamental rights, which may result through the exercise
of the right to judicial protection, is, in sum, an element of fundamental integration in a
model of exercise of control for conformity with the Convention.
B) The right to a judicial remedy as an essential part of a model of exercise of
control for conformity with the Convention
85.
The Inter-American Court has established that control for conformity with the
Convention is “an institution that is utilized to apply international law, in this case, the
international law on human rights, and, specifically, the American Convention and its
sources, including the case law of this Court.”132
86.
Likewise, the Inter-American Court has indicated that the Inter-American
jurisprudence, or the “interpreted conventional norm” is binding on two fronts: one related
to the case in particular (res judicata) addressed to the State that has been a material party
in the international process; and, the other which, at the same time, radiates general
effects for the remaining States Parties to the American Convention, as a matter of
interpretation (res interpretata). The foregoing is especially important for “control for
conformity with the Convention,” as all domestic authorities, in conformance with their
respective powers and the corresponding procedural regulations, should exercise this sort of
control, which is also helpful for compliance with judgments from the Inter-American
Court.133
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
132
Case of Gelman V. Uruguay. Monitoring of Compliance with Judgment. Order of March 20, 2013, para. 65.
133
Cf. Case of Gelman V. Uruguay. Monitoring of Compliance with Judgment. Order of March 20, 2013, para.
67 and ss.
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.
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