b. Intensity of “diffuse conventionality control”: of a greater degree when a
court has jurisdiction to disregard a general norm or declare it invalid
34.
All judges and judicial organs that carry out jurisdictional functions from a
material perspective “should” conduct “conventionality control”. This is the clear
message sent by the Inter-American Court in its Judgment in the Case García
Cabrera and Montiel Flores, the subject of this concurring opinion. This does not
exclude those judges who cannot carry out “constitutionality control."
35.
Indeed, the specific nature of the doctrine requiring judges to conduct “ex
officio” conventionality control “obviously within the framework of their respective
competences and the corresponding procedural regulations” 49 cannot be
interpreted as a restriction on the exercise of “diffuse conventionality control” but
rather as a way to "calibrate” its intensity. This is so, because this type of control
does not necessarily imply the application of Conventional provisions or
jurisprudence, as opposed to domestic ones, but rather it also implies, above all,
an attempt to harmonize domestic legislation with that of the Convention, through
a “conventional interpretation” of the national standard.
36.
Thus, in the so-called “diffuse” systems of constitutional control where all
judges are authorized not to apply a law to a specific case when it contravenes the
national Constitution, the degree of “conventionality control” has greater scope,
since all national judges have the power to disregard any standards that are not
consistent with the Convention. This approach affords an intermediate degree of
“control”, which will only work if there is no possible “interpretation” of national
regulations compliant with the Pact of San Jose (or other international treaties, as
discussed below) and conventional jurisprudence. Through this "compliant
interpretation" the "conventionality" of domestic laws is safeguarded. The highest
Constitutional courts (usually the final interpreters in a specific constitutional legal
system) are able to carry out the maximum degree of “conventionality control” and
generally also have the power to declare invalid an unconstitutional norm with erga
omnes effects. This involves a general declaration of invalidity based on the
national standard’s non-compliance with the Convention.
37.
By contrast, the intensity of “diffuse conventionality control” will diminish in
those systems that do not permit “diffuse constitutionality control” and, therefore,
not all judges have the authority to not apply a law to a specific case. In these
cases it is obvious that judges who lack such jurisdiction will exercise “diffuse
conventionality control" with less intensity, without this implying that they cannot
do so "within their respective jurisdictions.” This means that they may not suspend
application of the law (since they do not have that power), and will, in any case,
make a “conventional interpretation” of it, i.e. a "compliant interpretation," not only
of the national Constitution, but also of the American Convention and conventional
jurisprudence. This interpretation requires a creative effort in order to ensure
compatibility between the national standard and the conventional parameter,
thereby guaranteeing the effectiveness of the right or freedom in question, with the
greatest possible scope in terms of the pro homine principle.
38.
Indeed, when “examining compatibility with the Convention,” the domestic
judge must always apply the pro homine principle (enshrined in Article 29 of the
Pact of San Jose), which implies, inter alia, giving the most favorable interpretation
49
Clarification made in the Case of the Dismissed Congressional Employees (Aguado Alfaro et al.)
v. Peru, supra note 15, para. 128.
13
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