SEPARATE OPINION OF JUDGE SERGIO GARCÍA RAMÍREZ
CONCERNING THE JUDGMENT OF THE
INTER-AMERICAN COURT OF HUMAN RIGHTS
IN THE CASE OF THE DISMISSED CONGRESSIONAL EMPLOYEES V. PERU,
OF NOVEMBER 24, 2006
1.
In this judgment, the Court has ruled on the control of “conventionality”
(para. 128) that can and must be exercised by the national Judiciary with regard to
acts of governmental authorities – including, norms of a general scope – pursuant to
the powers conferred on them by the laws which govern them and the provisions of
the international human rights law, to which the State that these national organs
belong to are bound by different acts of a sovereign nature (ratification of or
accession to a treaty, acceptance of a jurisdiction). The Court has referred to this
“control” in its judgment in the Almonacid case (para. 124) previously this year.
2.
In the instant case, when referring to the control of “conventionality,” the
Inter-American Court has considered the applicability and application of the
American Convention on Human Rights, Pact of San José. However, the same
function is deployed, for the same reasons, with regard to other instruments of a
similar nature, that comprise the corpus juris arising from the human rights
conventions to which the State is a party: the Protocol of San Salvador, the Protocol
to Abolish the Death Penalty, the Convention to Prevent and Punish Torture, the
Convention of Belém do Pará on the Eradication of Violence against Women, the
Convention on Forced Disappearance of Persons, etcetera. The task is to ensure
consistency between actions at the national level and the international commitments
made by the State that generate specific obligations for the latter and recognize
certain rights for the individual.
3.
The jurisdictional chain of the means of controlling acts of governmental
authorities is well known; under diverse jurisdictional criteria – and not always in
accordance with a system of instances that represent new stages of one and the
same process – it endeavors to adjust the acts of the governmental authorities to
the law. In the sphere that I am interested in referring to, this occurs each time that
a proceeding on legality is heard (in the sense of ensuring that the act examined is in
keeping with the norm that should govern it, at the different levels of the normative
hierarchy): by the appeals body with regard to the body of first instance; by the
cassation authority concerning the contested judicial decision; by the constitutional
court with regard to acts of different national authorities, and by the international
court as regards acts which can be attributed to a State that has accepted that
court’s competence to settle contentious matters arising in the domestic sphere.
4.
On other occasions, I have compared the function of international human
rights tribunals to the mission of national constitutional courts. The latter are
responsible for safeguarding the rule of law through their decisions concerning the
subordination of acts of governmental authorities to the supreme law of the nation. A
case law of principles and values (principles and values of the democratic system)
has arisen in the development of constitutional justice, which illustrates the direction
taken by the State, provides security to the individual, and establishes the route and
the boundaries for the work of the State’s organs. Considered from another angle,
the control of constitutionality, as an assessment of and a decision on the act of the
governmental authority put on trial, is entrusted to a high-ranking organ within the