17
should not be limited only by the manifestations or actions of the plaintiffs in each
case.”56
43.
It may even happen that in the domestic forum there be appeals or
measures of defense that are appropriate and efficient to combat the lack of or
improper exercise of the "diffused the control of conformity with convention" by a
judge (for example, through an appeal, cassation remedy, or petition for legal
protection [amparo]), upon this control not being exercised ex oficio. This regards
a new aspect of the principle of iura novit curia (the judge knows the law and
jurisprudence of the Convention).
D) Parameter of “diffused control of conformity with the Convention”: The
“Block of Conformity with the Convention”
44.
In principle, the parameter of the "diffused the control of conformity with
convention" by national judges (regardless of whether or not they implement the
control of constitutionality), is the Pact of San Jose and the jurisprudence of the I/A
Court of H.R. that interprets it. The last part of the jurisprudential doctrine so
provides:
“In this task, the judges and bodies linked to the administration of justice
must take into account not only the Pact of San José, but also the
interpretation of it made by the Inter-American Court, the last interpreter of
the American Convention.57 (underlining added).
45.
Nevertheless, the “jurisprudence” itself of the I/A Court of H.R. has
expanded the Inter-American corpus juris in regard to human rights in order to
establish foundations for its rulings. It should not go unnoticed that it is the Pact of
San Jose which permits the inclusion "in the system of protection of this
Convention, other rights and freedoms recognized in accordance with Articles 76
and 77," which has allowed for the approval of various “additional” Protocols to
(the American Convention) and their interpretation by the Inter-American Court.
Likewise, the Pact itself establishes as an interpretive norm that one can not
exclude or limit the effect that the American Declaration of the Rights and Duties of
Man and "other international acts of the same nature."58
46.
Regarding this, the opinions in the concurring opinion Judge García Ramírez
in the Case of the Dismissed Congressional Employees (Aguado Alfaro et al.) v.
Peru are illustrative, specifically regarding the analysis of the parameter of “control
of conformity with the Convention”:59
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
56
Para. 128, in fine, Case of Dismissed Congressional Employees (Aguado Alfaro et al.) v. Perú,
supra note 15.
57
Case of Cabrera García and Montiel Flores v. Mexico, supra note 1, para. 227.
58
Article 29, d). See supra note 50.
59
Para. 2 of the concurring opinion of judge Sergio García Ramírez, regarding the Judgment of
cited case, of November 24, 2006.
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