34
114. As was stated at the time, the effective judicial remedy under Article 25 of the
Convention is broad and general to protect the rights contained in the Constitution, the
legislation, or the American Convention; while the right to appeal the judgment to a higher
court set forth in Article 8(2)(h) is aimed at the review of a decision reached in the context
of a process that can include the determination of rights and obligations of a criminal
nature, as well as of a civil, labor, fiscal, or any other nature. 166 While the latter is
encompassed within the scope of due process, the first one is within the dimension of the
right to the guarantee of fundamental rights of both constitutional and conventional
sources.
115. With respect to the right to appeal the judgment to a higher court or tribunal
enshrined in Article 8(2)(h), the Inter-American Court has consistently avoided any
confusion between this recourse and the provisions of Article 25 of the American
Convention, which provides for the right to an effective judicial recourse. That is, the InterAmerican Court has identified that the remedy set forth in Article 25 of the American
Convention is not the same as the process of appeal provided for in Article 8(2)(h) of the
same treaty.167 From the foregoing, the differences between the remedies that are provided
for both in Article 8(2)(h), as well as Article 25 of the American Convention, seem, at least,
prima facie evident. However, undoubtedly, there exists a gray area where these
distinctions may not be as easy to realize, especially when you take into account the broad
range of expectations that the recourse framed in Article 25 of the Convention can have, in
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
166
Cf. Case of de la “White Van” (Paniagua Morales et al.) V. Guatemala. Merits. Judgment of March 8, 1998.
Series C No. 37, para. 149.
167
See, among others, Case of Vélez Loor V. Panamá. Preliminary Objections, Merits, Reparations and Costs.
Judgment of November 3, 2010. Series C No. 218, para. 178; Case of Barreto Leiva V. Venezuela. Merits,
Reparations and Costs. Judgment of November 17, 2009. Series C No. 206, para. 100 to 103; and Case of
Mohamed V. Argentina. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 23, 2012.
Series C No. 255, paras. 118 and 119.
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