interpretations that are not in conformity with the Convention or less effective as
regards the enjoyment and protection of the respective right or freedom; in this
sense, there is a parallel with the “compliant interpretation” of the Constitution
made by national courts, especially the constitutional judges. Secondly, and only if
compliance of the domestic rule with the Convention cannot be achieved,
“conventionality control” should be applied with greater intensity, either by
suspending the norm in the specific case or by declaring it invalid with general
effects, due to its non-compliance with the Convention, according to the respective
competences of each national judge.
c) Conventionality control must be exercised “ex officio”: whether or not
invoked by the parties
42.
This feature of “diffuse conventionality control” is a specification of the
original doctrine. It was established in the Case of the Dismissed Congressional
Employees (Aguado Alfaro et al.) v. Peru, 54 two months after the Case of
Almonacid Arellano v. Chile, and ever since then has been firmly upheld in the
Inter-American Court’s case-law. It involves the possibility domestic judges
exercising conventionality control, regardless of whether the parties invoked it. In
fact, it complements the “diffuse” nature of that control. If the prior nature of
“diffuse conventionality control” established the Inter-American Court’s intention
that any judge, regardless of rank, grade or area of expertise had the “obligation”
to exercise it (from where the term “diffuse control” comes), now that feature is
further accentuated by specifying that it is an obligation that must be exercised "ex
officio," which means that under any circumstance, judges must exercise this
control, since “this function should not be exclusively limited by the expressions or
actions of the plaintiffs in each specific case.” 55
43.
It is even possible that in the domestic jurisdiction there are appeals or
measures of defense that are appropriate and efficient to combat the lack of or
ineffective exercise of “diffuse conventionality control” by a judge (for example,
through an appeal, cassation remedy, or motion of amparo), when such control has
not been exercised ex officio. This is a new facet of the principle of iura novit curia
principle (the judge knows the law and jurisprudence of the Convention).
Block”
d) Parameter of “diffuse conventionality control”: the “Conventionality
44.
In principle, the parameter of “diffuse conventionality control" by national
judges (regardless of whether or not they carry out constitutionality control), is the
Pact of San Jose and the case-law of the Inter-American Court which interprets it.
The last part of the jurisprudential doctrine establishes:
“In this task, the judges and bodies linked to the administration of justice
must take into account not only the [Pact of San Jose], but also its
interpretation by the Inter-American Court, the final interpreter of the
American Convention. 56 (Underlining added).
45.
Nevertheless, the Inter-American Court’s own “jurisprudence” has gradually
expanded the Inter-American corpus juris on human rights in order to lay the
54
Idem.
55
Para. 128, in fine, Case of Dismissed Congressional Employees (Aguado Alfaro et al.) v. Peru,
supra note 15.
56
Case of Cabrera García and Montiel Flores v. Mexico, supra note 1, para. 227.
16
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