13
his concurring opinion in the Case of Dismissed Congressional Employees (Aguado
Alfaro et al.) v. Peru, stated:49
3.
In other words, the organs of the Judiciary of each State Party to the
American Convention should have an in-depth knowledge of and duly apply
not only constitutional law but also international human rights law; should
exercise ex officio the control of compliance with the constitution
(constitutionality) and with international treaties (conventionality),
considered together, since the international and national legal systems are
in constant interaction in the domain of the protection of the individual.
(underlining added).
33.
The doctrine of "diffused control of conformity with the Convention" established
by the I/A Court of H.R. is addressed to all national judges, who must exercise such
"control" regardless of rank, grade, level or jurisdiction given to them by domestic
regulations.
b. Intensity of the “diffused control of conformity with the Convention”: of a
greater degree when there is jurisdiction to not apply or declare the invalidity of a
general norm
34.
All judges and judicial bodies that perform functions from a material perspective
"should" implement the "control of conformity with the Convention." This is the
clear message that the I/A Court of H.R. imparted in the Judgement in the Case
García Cabrera and Montiel Flores, on the subject of this concurring opinion. This
does not exclude the judges that can not carry out a "control of constitutionality."
35.
Indeed, the specificity of the doctrine on which judges must "ex oficio" carry
out the control of conformity with the Convention "clearly within their respective
competence and corresponding procedural regulations,” 50 can not be interpreted as
limited in the exercise of the "diffused control of conformity with the Convention”
but rather as a way to "calibrate” its intensity. This is because this type of control
does not necessarily imply the application of the norms or jurisprudence of the
Convention as opposed to the domestic ones, but rather it also implies, first, an
attempt to harmonize domestic legislation with that of the Convention, through an
“interpretation of the Convention” of the national standard.
36.
Thus, in the so-called "diffused" systems of constitutional control where all
judges have the power to not apply a law to the specific case because it
contravenes the national Constitution, the degree of “control of conformity with the
Convention” encompasses more when the domestic judges are able to disapply
norms that are in accordance with the Convention. E This course is an intermediate
degree of "control," which will operate only if there is a possible "interpretation" of
national regulations in accordance with the Pact of San José (or some other
international treaties, as discussed below) and the jurisprudence of the Convention.
Through this "interpretation in accordance" the "conventional" internal standard is
reflected. The degree of maximum intensity of the "control of conformity of the
Convention" can be made by the highest Constitutional courts (usually the last
interpreters in a particular constitutional legal system) that generally also have the
power to declare the invalidity of the unconstitutional norm with erga omnes
49
Supra note 15, para. 3 of the concurring opinion of judge Antônio Augusto Cançade Trindade.
50
Specification carried out as of the Case of Dismissed Congressional Employees (Aguado Alfaro
et al.) v. Perú, supra note 15, para. 128.
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