Having understood the rules and regulations as examined above, we can now discuss
herebelow the relevant facts involving the preliminary objection for failure to exhaust
domestic remedies.
A. The premises in the petition
The petition is dated February 3, 2003 and was received by the Commission on the following
February 19.
The text first outlines the facts that gave rise to the petition, noting that, by judgment of the
Supreme Court of Peru, the jurisdictional dispute between the military courts and the ordinary
courts had been settled in favor of the military jurisdiction, and therefore, “… as this was a
ruling by the Supreme Court, the remedies of the domestic jurisdiction have been exhausted.”
It can be inferred from the summary that this statement was made in positive terms, that is,
to affirm that the remedies of the domestic jurisdiction in the case at hand had in fact been
exhausted, thus meeting the requirements.
It should likewise be emphasized that, as a natural consequence, the petition makes no
mention of any situation that, in the instant case, would justify the claim that this compliance
was not appropriate or mandatory.
Finally, it should be understood that the case file shows no evidence that either the
Commission or the Executive Secretariat on behalf of the Commission raised any objections
to the petition.
B. The content of the State’s comments
The State submitted its observations on the petition on December 1, 2003. It said, “on August
16, 2003, the Transitory Criminal Law Chamber of the Supreme Court ruled on a jurisdictional
dispute in favor of the military courts, holding that they should continue with their preliminary
investigations and that the Third Special Criminal Chamber should accordingly send the
investigative prosecutor of the Supreme Council of Military Justice a certified copy of all its
actions in the investigation against” the named individuals, “ORDERING it to continue the
investigation of the accused,” whom it then names. It also lists the judicial processes
undertaken in the military jurisdiction on November 3 and December 1, 2003.
The State’s brief closes by saying that “because a criminal process is still pending in the
domestic jurisdiction and therefore the relevant remedy has not been previously exhausted,
the State of Peru requests the Honorable Commission to find petition 136/2003 inadmissible
pursuant to Article 46(1)(a) of the American Convention and Article 31 of the Rules of
Procedure of the Commission.”
C. Analysis in the Admissibility Report
The Commission issued its Admissibility Report on the petition on February 27, 2004, including
a discussion of the comments made by the State.
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