24.
The State argued that – owing to their character as victims in the Suits for Damages
against Luis García Meza Tejada and his collaborators, as well as in the ordinary criminal
procedure of the "Public Prosecutor v/ Franz Pizarro Solano et al.," the relatives of Juan Carlos
Flores Bedregal had the domestic legal mechanisms of reparation at their disposal, which, for
the first process, took into account the abrogated Code of Criminal Procedure of 1972; and
for the second process, Law No. 1970 of March, 25, 1999. It alleged that those remedies were
not exhausted in a timely manner.
25.
The Commission noted that the State invoked this objection for the first time in the
brief filed on January 19, 2011, almost a year and a half after adopting Admissibility Report
No. 65/09 of August 4, 2009. Therefore, it argued that this preliminary objection was not filed
by the State at the appropriate procedural time. It further stated that the Convention does
not require the exhaustion of additional remedies for reparation when remedies linked to the
determination of predicate violations have already been exhausted, as this would impose a
disproportionate burden on victims seeking international protection.
26.
The representatives argued – as the Commission pointed out in its Admissibility
Report – that the fact that decades have elapsed without determining the whereabouts of the
alleged victim or clarifying what happened is sufficient to conclude that there was an
unjustified delay that exempts the petitioner party from exhausting domestic remedies. It
added that the preliminary objection formulated by the State does not meet the material or
formal requirements demanded by the Court's case law in demonstrating that the remedies
pending exhaustion were appropriate, suitable, or effective in relation to the victims' claim in
this case. It also noted that this argument on admissibility was not presented at the
appropriate procedural time.
B.2. Considerations of the Court
27.
The American Convention establishes that the Court may only exercise its contentious
jurisdiction in cases in which it has previously complied with the procedures provided for in
Articles 44 to 50 of the Treaty that refer to the study of individual petitions by the Commission.
The State questions the exercise of the Court's contentious jurisdiction in this case based on
the alleged failure to comply with the rules governing the admissibility of individual petitions,
specifically, those relating to the prior filing and exhaustion of domestic remedies.
28.
However, Article 46 of the American Convention states that examining the exhaustion
of domestic remedies as a requirement for the admissibility of petitions is subject to generally
recognized principles of international law. The principles governing international contentious
proceedings and the precedents established by the Court in its case law and by the
Commission in its reports indicate that objections as to whether or not domestic remedies
have been exhausted as a prerequisite for access to international protection are only
enforceable on States at the appropriate procedural time, in this case, during the admissibility
procedure before the Commission. 13
29.
As understood from the proceedings of this case, Petition No. 616/06 on the alleged
violations of the American Convention perpetrated against Juan Carlos Flores Bedregal and
his family was declared admissible by Admissibility Report No. 65/09 of August 4, 2009,
communicated to the State on August 14, 2009. However, the State only alleged the failure
to exhaust domestic remedies in relation to material reparations, through the brief of
Cfr. Case of Velásquez-Rodríguez v. Honduras. Preliminary Objections. Judgment of June 26, 1987. Series
C No. 1, para. 85, and Case of Sales Pimenta v. Brasil. Preliminary Objections, Merits, Reparations, and Costs.
Judgment of June 30, 2022. Series C No. 454, paras. 26 and 27.
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