30. The State also contends that it did not adopt any measure that could be presumed to have violated any rights of Fernán Vargas Rohrmoser. It alleges that Mr. Rohrmoser acted in bad faith in petitioning the Commission and the Court on his own behalf and on behalf of the journalist, Mr. Herrera Ulloa, and in heading some of his pleadings with their names, followed by the words “del Diario La Nación” [“from La Nación newspaper”]. In the opinion of the State, the use of that expression caused confusion on the part of the Commission and the Court, which proceeded to issue, respectively, precautionary measures to prevent irreparable damage to Mauricio Herrera Ulloa and Fernán Vargas Rohrmoser and judicial decisions, in which parity of treatment was granted to the two petitioners. The State holds that this was not appropriate under the law. 31. In the final comments sent by the State to the IACHR on November 30, 2001, additional considerations regarding the legal standing or capacity of Mr. Vargas Rohrmoser were put forward. In the first place, it contended that the petitioners made a false statement when they declared that the order of execution dated February 21, 2001 entailed a warning of a possible criminal sanction for committing the offense of disobedience of authority, since that circumstance arose under the decision of April 3, 2001, and was notified on May 1 of that year, subsequent to the date on which the petition was filed with the IACHR. The State pointed out that this decision is not referred to in the written documents submitted earlier by the petitioners, and that it should therefore be disregarded on those grounds. As for the allegation by petitioners that Mr. Vargas Rohrmoser would be subject to imprisonment, the State alleged that this would not occur even in the event that he failed to comply with the order of execution of judgment, since under Costa Rican criminal law, there is provision for conditional execution of sentence. Two requirements are established under this provision: that there be an earlier offense; and, that the sentence imposed be less than three years. Consequently, the State maintains that even if Mr. Vargas Rohrmoser has no criminal record, a prison sentence would never ultimately be served, because the sentence applicable to offenses of disobedience of authority is less than three years. 32. The State alleged that the petition is inadmissible because of a failure to exhaust domestic remedies, since the alleged victims could have used the recourse of unconstitutionality, in an attempt to derogate the law which in their view violated their freedom of expression and to prevent it from having legal effect, thereby failing to observe the principle of the subsidiary character of the inter-American system. It went on to state that this recourse would have been appropriate and effective in derogating the law which the petitioners considered to be a violation of their rights, since “the matter pending settlement in the national courts is suspended until a decision is issued in this case.” 7 Finally, the State indicated that the declaration of unconstitutionality causes the law or legal instrument being challenged become null and void, produces res judicata, and eliminates the legal provision or instrument from the body of law, and that the constitutional judgment providing for nullity has retroactive effect in favor of persons suspected or convicted of a crime. IV. ANALYSIS OF ADMISSIBILITY A. Jurisdiction of the Inter-American Commission, on the basis of personae, ratione materiae, ratione temporis y ratione loci a. ratione Competence “ratione personae” 33. Article 44 of the American Convention and Article 23 of the Regulations of the IACHR stipulate that “any person or group of persons” may lodge petitions with the Commission referring to alleged violations of the American Convention. Therefore, Fernando Lincoln Guier Esquivel, Carlos Ayala Corao, Pedro Nikken, Mauricio Herrera Ulloa and Fernán Vargas Rohrmoser are authorized to appear as petitioners before this Commission. 34. In the case in point, the legal standing of the presumed victims [legitimación procesal] has been questioned. The petitioners presented Mauricio Herrera Ulloa and Fernán Vargas Rohrmoser, the latter in his capacity as legal representative of “La Nación,” as victims of the reported acts, and requested precautionary measures in favor of both of them. 7 See the letter from the Office of the Public Prosecutor of the Republic of Costa Rica to the Inter-American Court of Human Rights, Nº PGA-293-2001 of November 30, 2001, p. 9. 5