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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