28
93.
It is important to once again note that the State Parties to the American Convention
have wide margins to comply with these general obligations. This approach has been constant
in the jurisprudence of the Tribunal by indicating that what is important is the observance of
“effectiveness” in terms of the principle of the effet utile “and this means that the State must
take such measures as may be necessary to actually comply with the provisions of the
Convention”;141 as such, the Inter-American Court has considered it necessary to reaffirm
that such obligation, by its very nature, constitutes an obligation of results.142
94.
Therefore, it can be said that integration at the normative level, but especially at the
interpretative level in the international and domestic domain contributes to the consolidation
of an integrated Inter-American System, which allows an intense dialogue between all
judicial practitioners, especially with judges of all hierarchies and subject-matters, which
inextricably produces the basis for the consolidation of the legal means to guarantee the
effectiveness of fundamental rights and the creation of a ius constitutionale commune in the
area of human rights in our region.
IV. THE RIGHT TO JUDICIAL PROTECTION IN THIS CASE
A) On the arguments of Mr. Alibux before the High Court of Justice of Suriname and
the decision of the Inter-American Court
95.
In this case, Mr. Alibux argued before the High Court of Justice of Suriname, the
incompatibility of Article 140 of the Constitution of Suriname and the Indictment of Political
Office Holders Act with the provisions of Article 8(2)(h) of the American Convention and
Article 14(5) of the International Covenant on Civil and Political Rights, for establishing
criminal proceedings in a single instance. Given this clear statement of incompatibility with
the Convention, the High Court of Suriname that heard the criminal proceedings, through an
Interlocutory Resolution, responded that while such international treaties have binding
effects on the State, they have no direct legal effect, since a domestic court cannot
establish processes of appeal that are not recognized by the law.
96.
In its Judgment, the Inter-American Court declared the violation of Article 8(2)(h)
precisely because no second instance was provided. Although the foregoing was established
years later in the amendment to the aforementioned Indictment of Political Office Holders
Act in 2007 through the creation of a process of appeal, the violation materialized at the
inability to appeal the conviction in 2003; moreover, the victim had already served his
sentence prior to this amendment. The Inter-American Court held that by declaring the
violation of Article 8(2)(h) of the Convention, it did not deem it necessary to issue an
additional ruling regarding the violation of Article 25 of the American Convention “as the
consequences of the damages described in his allegations are subsumed in the
considerations”143 regarding Article 8(2)(h); that is, the alleged violation of the right to
judicial protection “is encompassed within the aforementioned violation of the right to
appeal the judgment. It was precisely the absence of a remedy under the terms of Article
8(2)(h) of the Convention, which would have guaranteed the possibility of challenging the
141
Case of Comunidad Indígena Yakye Axa V. Paraguay. Merits, Reparations and Costs. Judgment of June 17,
2005. Series C, No. 125, para. 101.
142
Cf. Case of Caesar V. Trinidad and Tobago. Merits, Reparations and Costs. Judgment of March 11, 2005.
Series C No. 123, para. 93.
143
Para. 119 of the Judgment.
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos