32 construction and could have been have been dismissed in limine, the Commission examined it all the same and then dismissed it; d) the argument asserting failure to exhaust domestic remedies, which the State claimed in its brief answering the application filed with the Court, is a belated one, as the Commission was the body that should have decided this question; therefore the State is understood as having tacitly waived this defense; e) while the action challenging constitutionality provided for in the Constitution and elaborated upon in Article 75 of the Constitutional Jurisdiction Act is a legal action whose effects are to nullify erga omnes a provision or law on the grounds that it is unconstitutional, it is mainly an incidental proceeding; f) the action challenging constitutionality is an extraordinary remedy regulated by a special law. In theory, at least, such an action can be used to challenge the public authorities’ interpretation or application of a legal norm. In Mr. Herrera Ulloa’s case, however, until the conviction came down he had no way of knowing how the law alleged to be in violation of the Convention would be interpreted and, by extension, how the court would apply it to his specific case; g) in the case filed with the Court, the alleged victims were acquitted by the court of first instance and therefore did not have legal standing to bring an action challenging constitutionality. When the Supreme Court upheld the later conviction, which made it final, the action challenging constitutionality could no longer be filed as there was no longer any criminal proceeding underway, which is a precondition under Costa Rican law. The alleged victims could not then –and cannot now- bring the action challenging constitutionality to which the State alludes to support its claim that the case is inadmissible; h) Article 8(1) of the Constitutional Jurisdiction Act requires the organs of the administration of justice to desist from applying any provision found to be contrary to the Constitution, either ex officio or at the request of a party; in case of doubt, an organ for the administration of justice must refer the matter to the Constitutional Court. In the instant case, it was the judge hearing the case who, “as the presiding and sentencing judge,” should have taken steps to determine whether the criminal law he was going to invoke was compatible with the Convention; i) the alleged victims made the case to the Third Chamber of the Costa Rican Supreme Court that the Criminal Court of the First Judicial Circuit of San José did not have jurisdiction to amend the juridical determination of the facts denounced by the party filing the criminal complaint. But the Third Chamber of the Costa Rican Supreme Court ruled that “the court […] does have the authority to determine [the substantive object of the proceeding] based on the corresponding legal description of the crime [and …] has an obligation to alter the crime charged to the one it deems best fits the facts;” j) Mr. Mauricio Herrera Ulloa did not know what crime he was charged with until the guilty verdict was delivered. In practice, an action filed to challenge constitutionality during a criminal proceeding is “an entirely