34
comparison with the diverse claims that can be substantiated in domestic jurisdictions. In
my opinion, the case of Liakat Ali Alibux is situated on that assumption.
116. As can be inferred from the Interlocutory Resolution of the High Court of Justice of
Suriname, at the heart of the arguments raised by Mr. Alibux was the lack of a process of
appeal in the proceedings that were ongoing, but it was also reasonably clear that his claim
was related to the illegality, unconstitutionality, and non-conformity with the Convention of
the inexistence of such recourse. Likewise, this objection raised by Mr. Alibux was neither in
legal nor factual terms in the eyes of international law an appeal, since such remedy did not
exist in the legislation of Suriname at the time of the facts, and because the High Court of
Justice did not want to give it that effect. In any case, the recourse sought by Mr. Alibux
could have been classified within that broader sphere of judicial protection afforded by
Article 25 of the American Convention. As such, the substantiation of this recourse could
have been evaluated from this perspective, and not as an issue in the Judgment that was
subsumed within the right to appeal the judgment embodied in Article 8(2)(h) of the
Convention.
117.
In controversies of this sort, to subsume such recourses within the sphere of Article
8(2)(h) denies, from the get-go, the need of access to a judicial remedy of control that can
deal with constitutional and conventional questions when the absence of certain specific
recourse provided for in the American Convention is anticipated. Moreover, this can also
result in ignoring the need to adopt accurate practices of control for conformity with the
Convention, such as those performed by tribunals in various countries in the region, as has
been observed, for instance, in the cases of Argentina and the Dominican Republic.
118. On the one hand, in the case of Mendoza et. al v. Argentina, the Inter-American
Court analyzed the pertinent part of the “Casal judgment,” whereby the highest Argentinean
court, the Supreme Court of Justice of the Nation, adjusted the remedy of cassation to
Inter-American standards.168 In the aforementioned judgment, the Supreme Court of Justice
of the Nation of Argentina indicated that “Articles 8(2)(h) of the American Convention and
14(5) of the [International] Covenant [on Civil and Political Rights] require the review of
every issue of fact and law and, therefore, any error that the judgment may contain shall be
subject to appeal.”169 The Inter-American Court appreciated the Casal judgment with regard
to the criteria it reveals on the scope of the review comprised by the appeal in cassation, in
accordance with the standards derived from Article 8(2)(h) of the American Convention. 170
From the foregoing, the Court deemed it appropriate to consider that the judges in
Argentina should continue exercising control for conformity with the Convention in order to
ensure the right to appeal the judgment pursuant to Article 8(2)(h) of the Convention and
the jurisprudence of the Inter-American Court itself. Nonetheless, the Court considered that,
even with the judges exercising control for conformity with the Convention, it was necessary
to, within a reasonable time, adapt domestic laws to the Inter-American parameters on the
matter.171
168
Cf. Judgment of the Supreme Court of Justice of the Nation on September 20, 2005 in the case “Casal,
Matías Eugenio et al. s/ attempted robbery.”
169
Case of Mendoza et al. V. Argentina. Preliminary Objections, Merits and Reparations. Judgment of May 14,
2013 Series C No. 260, para. 254.
170
Cf. Case of Mendoza et al. V. Argentina. Preliminary Objections, Merits and Reparations. Judgment of May
14, 2013 Series C No. 260, para. 331.
171
Cf. Case of Mendoza et al. V. Argentina. Preliminary Objections, Merits and Reparations. Judgment of May
14, 2013 Series C No. 260, para. 332.
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