8
competence and the corresponding procedural rules. To perform this
task, the Judiciary has to take into account not only the treaty, but also
the interpretation thereof made by the Inter-American Court, which is the
ultimate interpreter of the American Convention. (Underlining added).
18.
As is evident, the I/A Court of H.R. clarifies its doctrine on the “control of
compliance,” by substituting the statements regarding the “Judicial Branch” that
appeared since the leading case of Almonacid Arellano v. Chile (2006), and now, it
alludes to “all of the bodies” of the State that have ratified the American
Convention, “including its judges,” all of which should fight for the effet utile of the
Pact, and that the “judges and bodies linked to the administration of justice at all
levels” are obligated to exercise, ex oficio, “the control of compliance.”
19. The intent of the I/A Court of H.R. is clear: to define that the doctrine of
“control of compliance” should be exercised by “all judges,” regardless of their
formal membership in the Judiciary Branch, and regardless of their rank, grade,
level or area of expertise.
20. Thus, there is no doubt that the "control of conventionality" must be carried
out by any and all judges or courts that materially perform judicial functions,
including, of course, the Courts, Chambers or Constitutional Courts, and the
Supreme Courts of Justice and other high judicial bodies of the twenty-four
countries have signed and ratified or acceded to the American Convention on
Human Rights, 33 and even more so, of the twenty states that have recognized the
contentious jurisdiction of the I/A Court of H.R. 34, a total of thirty-five countries
that make up the OAS.
C. CHARACTERIZATION OF THE “DIFFUSED CONTROL OF COMPLIANCE” IN
LIGHT OF THE DEVELOPMENT OF ITS JURISPRUDENCE
a) “Diffused” nature: all domestic judges “must” exercise it
21.
This involves, in all actuality, a “diffused control of conformity with the
Convention,” given that it must be exercised by all domestic judges. As a
consequence, there exists an assimilation of concepts regarding Constitutional Law,
that which has been present since the beginning and in the development of the
International Law of Human Rights, particularly in the creation of the international
“guarantees” and “bodies” for the protection of human rights. There is clearly an
“internationalization of Constitutional Law,” particularly in what regards the
transport of “constitutional guarantees” as procedural instruments for the
protection of fundamental rights and the safeguarding of “constitutional
supremacy,” to that of “the conventional guarantees,” as judicial and quasi-judicial
mechanisms for the protection of the human rights enshrined in the international
pact when the other has not been sufficient; as such, in some way, there is also a
“conventional supremacy.”
22.
One of the manifestations of this process of “internationalization” of the
constitutional categories is, precisely, the diffused concept of conformity with the
33
Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominicana, Ecuador, El
Salvador, Guatemala, Haití, Honduras, Jamaica, México, Nicaragua, Panamá, Paraguay, Perú, Domincan
Republic, , Suriname, Uruguay and Venezuela. Trinidad and Tobago denounced the American
Convention on Human Rights.
34
The States mentioned in the foregoing note, with the exception of the Domincan Republic and
Jamaica (which to date have not accepted said jurisdiction) and Trinidad and Tobago (denounced in
1999).
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos