Exception of Unconventionality in Colombian State’s Public Proceedings

Excepción de inconvencionalidad en las actuaciones públicas del Estado colombiano

Within the framework of the boundaries to the exercise of “ius puniendi” as legitimate measures to keep at bay disproportionate use of police powers, as enshrined in the rule of law, a normative supranational boundary has emerged to safeguard citizens’ fundamental rights. Such boundaries are subject to international (positive & negative) obligations that States parties must abide by once ratified. In order to categorize systematically the exception of unconventionality for more sustainable legal proceedings, a hermeneutical historical-analysis was done of case-by-case examinations to determine its reach in internal normative systems. This is a sample of supralegal guarantee that allows us to set some modulating criteria in the application of rules in compliance by deploying the same conditions of the constitutionality block. Specifically, when a high-court has adopted a line of jurisprudence with the effect of absolute constitutional res judicata, it becomes impossible for both judges and procedural actors to resort to exception of unconstitutionality in Colombian public proceedings. However, we find the exception of unconventionality as the last guarantee of effective legal protection, even when the constitutionality of human rights violations has been declared, according to the dissenting multilateral precedent of the competent body in regional human rights protection systems.