16
of H.R., specifically in the Case of Almonacid Arellano which gave rise to the doctrine
of "diffused control of conformity with the Convention,” is emphatic upon
establishing in para. 123 that:
when the Legislative Power fails to set aside and / or adopts laws which are
contrary to the American Convention, the Judiciary is bound to honor the
obligation to respect rights as stated in Article 1(1) of the said Convention,
and consequently, it must refrain from enforcing any laws contrary to such
Convention. The observance by State agents or officials of a law which
violates the Convention gives rise to the international liability of such State,
as contemplated in International Human Rights Law, in the sense that every
State is internationally responsible for the acts or omissions of any of its
powers or bodies for the violation of internationally protected rights,
pursuant to Article 1(1) of the American Convention. 54 (underlining added).
41. Thus, the "diffused the control of conformity with convention" although exercised
by all national judges, it has different degrees of intensity and execution, in
accordance with "their respective competences and corresponding procedural
regulations." In principle, it corresponds to all judges and courts to make an
"interpretation" of the national standard in light of the Convention, its Additional
Protocols (and possibly of other treaties), as well as the jurisprudence of the I/A
Court of H.R. and always with the interpretive rule of the principle pro homine of
Article 29 of the Pact of San José; in this first degree of intensity, an interpretation
according to the conventional parameters will be made, and therefore, those
interpretations that are not in conformity with the Convention or less effective in
regard to the enjoyment and protection of the right or freedom concerned will be
discarded; there exists, is in this sense, a comparison with the "consistent
interpretation" and with the Constitution made by national courts, especially
constitutional judges. Second, and only if the conformity with the Convention of the
internal standard cannot be saved, the " control of conformity with the Convention"
should be applied with more intensity, be it by disapplying the norm in the specific
case or by declaring the invalidity with general effects, as a result of the
unconventionality, in accordance with the respective responsibilities of each
national court.
c) It must be exercised “ex oficio”: be it invoked or not by the parties
42.
This characteristic of the “diffused control of conformity with the
Convention” constitutes a precision of the original doctrine. The Case of the
Dismissed Congressional Employees (Aguado Alfaro et al.) v. Perú,55 two months
after the Case of Almonacid Arellano v. Chile, established that as of then, the
jurisprudence of the I/A Court of H.R. has remained the same. It consists of the
possibility of exercising said control by domestic judges, regardless of whether the
parties invoked it. In fact, it constitutes a complement of the “diffused” nature of
said control. If in the prior characteristic of the "diffused control of conformity with
the Convention" the intent of the I/A Court of H.R. is established regarding the
“obligation” of any judge, regardless of rank, grade level or subject of specialization
(whence it is a "fuzzy control"), now that character is accentuated further by
specifying that it is an obligation that must be exercised "ex oficio," which means
that under any circumstance, judges must exercise this control, since “this function
54
Cf. Case of Ximenes Lopes, supra note 13, para. 172; and Case of Baldeón García, supra note
13, para. 140.
55
Idem.
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