20
e) Effects of the “diffused control of conformity with the Convention”:
retroactive where necessary to achieve full effectiveness of the right or freedom
53.
As we held in analyzing the degree of intensity of the "diffused control of
conformity with the Convention," the outcome of the examination of the
compatibility between the national standard and the "block of conformity with the
Convention," consists in “revoking” those interpretations not in conformity with the
Convention or those which are less favorable; or, if this can not be achieved, the
consequence is to "revoke" the national norm, either in the specific case or with
general effects declaring the invalidity made in accordance with the judge's
authority to conduct such monitoring.
54.
The foregoing involves a higher degree of complexity when national
regulations only allow the general statement of the standard for the future (ex nunc
effect) and not in the past (ex tunc), as it seems that the intent of the I/A Court of
H.R. at the time of establishing the doctrine of "diffused control of conformity with the
Convention" is that the norm not in conformity with the Convention lacks legal effect
"from its conception;”68 this is a precedent that is reiterated in subsequent cases,
especially in cases regarding self-amnesty laws69 or in other circumstances. 70
However, this criterion has not been constant for the I/A Court of H.R., rather it
depends on the specific case. 71
55.
We believe that the I/A Court of H.R. will, in the future, have to more
precisely define this delicate aspect of the temporality of the effects of national
standards not in conformity with the Convention because its jurisprudence is not
clear. It should not be overlooked that, in principle, any violation of human rights
should encompass a comprehensive remedial effect and, consequently, carry this
effect into the past when required in order to achieve that goal.
56.
The foregoing was established in Article 63(1) of the American Convention,
upon stating:
If the Court finds that there has been a violation of a right or freedom
protected by this Convention, the Court shall rule that the injured party be
ensured the enjoyment of his right or freedom that was violated. It shall also
Commune in Latin America?] México, UNAM-Max Planck Institut, 2010, tome II, pp. 259-333, in pp.
296-297.
68
Cf. Case of Almonacid Arellano et al. v. Chile, supra note 13, para. 124.
69
For example, in the Case of La Cantuta v. Perú, supra note 16, para. 174: “In line with this
view, the remaining dispute must be understood as part of the first set of measures that must be
adopted to adjust the domestic law to the Convention. In order to better understand the issue, it must
be noted that the Court has found that, in Perú, the self-amnesty laws are ab initio incompatible with
the Convention; that is, their mere enactment “constitutes per se a violation to the Convention” since it
“overtly conflicts with the duties undertaken by any State Party” to such treaty. Such is the rationale
behind the Court’s pronouncement with general effects in the case of Barrios Altos. That is why its
application by a state organ in a specific case, through subsequent statutory instruments or through its
enforcement by state officers, constitutes a violation to the Convention. Moreover, in the Case of Gomes
Lund et al. (“Guerrilha do Araguala”) v. Brazil, supra note 4, para. 106.
70
For example, in the Case of Radilla Pacheco v. United Mexican States, supra note 19, para.
339; as well as the recent Case of Ibsen Cárdenas and Ibsen Peña v. Bolivia, supra note 24, para. 202.
71
Cf., For example, Case of Dismissed Congressional Employees (Aguado Alfaro et al.) v. Perú,
supra note 15, para. 128; Case of Indigenous Community Xármok Kásek v. Paraguay, supra note 21,
para. 311; Case of Fernández Ortega et al.. v. México, supra note 22, para. 234; Rosendo Cantú et al.
v. México, supra note 23, para. 234; and Case of Vélez Loor v. Panamá, supra note 25, para. 287.
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