9
convention that we are analyzing, given that part of the deeply rooted connotation
of the “diffused control of conformity with the Convention” is in comparison to the
“concentrated control” carried out in the constitutional States by its highest
“constitutional judicial entities,” upon which the Tribunals, Courts, or Constitutional
Chambers, and in some cases the Supreme Courts and other high judicial bodies,
have the last constitutional interpretation. Thus, the “concentrated control of
conformity with the Convention” has been developed by the I/A Court of H.R. since
its very first judgments, submitting the actions and norms of the State, in each
particular case, to an examination of said conformity. That “concentrated control”
was carried out, fundamentally, by the I/A Court of H.R.. Now, it has been
transformed into a “diffused control of conformity with the Convention” by
extending said “control” to all the domestic judges as a requirement for action
within the domestic forum, although the I/A Court of H.R. retains its power as “last
interpreter of the American Convention” when the effective protection of human
rights in the domestic forum is not achieved.35
23.
It involves an “extensive system of control (vertical and general)” as has
been rightly highlighted by the former Inter-American judge Sergio García Ramírez.
In this regard, his reflections are illustrative, those of which are expressed in his
concurring opinion in the Judgment rendered in the Case of the Dismissed
Congressional Employees (Aguado Alfaro et al.) v. Peru:36
4.
On other occasions, I have compared the function of international
human rights tribunals to the mission of national constitutional courts. The
latter are responsible for safeguarding the rule of law through their
decisions concerning the subordination of acts of governmental authorities
to the supreme law of the nation. A case law of principles and values
(principles and values of the democratic system) has arisen in the
development of constitutional justice, which illustrates the direction taken
by the State, provides security to the individual, and establishes the route
and the boundaries for the work of the State’s organs. Considered from
another angle, the control of constitutionality, as an assessment of and a
decision on the act of the governmental authority put on trial, is entrusted
to a high-ranking organ within the State’s jurisdictional structure
(concentrated control) or assigned to diverse jurisdictional bodies in the
case of matters they hear pursuant to their respective competences
(diffuse[d] control).
12.
This control of “conventionality” [control for conformity with the
convention]– on the successful results of which the increased dissemination
of the regime of guarantees depends – can have (as has occurred in some
countries) a diffuse[d] nature; in other words, it can be in the hands of all
the courts when they have to decide cases in which the provisions of
international human rights treaties are applicable.
13.
This would allow an extensive (vertical and general) system of
control of the legality of the acts of governmental authorities to be drawn up
– as regards the conformity of such acts to international human rights
norms – without prejudice to the fact that the source of interpretation of the
35
Cf. Ferrer Mac-Gregor, Eduardo, “El control difuso de convencionalidad en el Estado
constitucional”, [The diffused control of conformity with the Convention in the constitutional State] in
Fix-Zamudio, Héctor, and Valadés, Diego (coords.), Formación y perspectiva del Estado mexicano,
[Formation and persepective of the Mexican State] México, El Colegio Nacional-UNAM, 2010, pp. 151188.
36
Case of Dismissed Congressional Employees (Aguado Alfaro et al.) v. Perú, supra note 15, para.
4, 12, and 13 of the concurring opinion.
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