13
Arguments of the representatives
47.
The representatives argued that “[t]he testimony and other evidence
presented to the Court demonstrate that the [alleged] victims actively and
repeatedly sought recourse in Suriname.” According to the representatives, “[t]hese
attempts to obtain justice were ignored, rebuffed and even chastised by Suriname
and produced no result.”
The Court’s Assessment
48.
Article 46(1)(a) of the American Convention provides that, in order for a
petition or communication submitted to the Inter-American Commission pursuant to
Articles 44 or 45 of the Convention to be admissible, it is necessary that the
remedies under domestic law have been pursued and exhausted.
49.
On this matter, the Court has already established clear criteria. To begin, of
the generally-recognized principles of international law regarding the rule on
exhaustion of domestic remedies, the foremost is that the defendant State may
expressly or tacitly waive invocation of this rule.3
Secondly, in order to be
considered timely, the objection that domestic remedies have not been exhausted
should be raised during the first stages of the proceeding; otherwise, it will be
presumed that the interested State has tacitly waived its use.4 Finally, the State
that alleges non-exhaustion of domestic remedies must indicate which remedies
should have been exhausted, as well as provide evidence of their effectiveness.5
50.
In the instant case, the State disputes that it has waived its right to argue
non-exhaustion of domestic remedies. Indeed, Suriname maintains that its first
objection on the subject, presented in a May 20, 2002 pleading submitted to the
Inter-American Commission, was made in a timely fashion.
However, as the
Commission has repeatedly pointed out, and as is unmistakable from the record,
Suriname’s first response on the matter was not presented until after the
Commission had issued both its Admissibility Report of March 7, 2000, and its Merits
Report of February 28, 2002 in the present case.
51.
Thus, as a consequence of not challenging this issue in a timely fashion, the
Court concludes that the State tacitly waived its right to object in this regard, and,
therefore, dismisses the instant preliminary objection.
3
Cf. Case of the Mayagna (Sumo) Awas Tingni Community. Preliminary Objections. Judgment of
February 1, 2000. Series C No. 66, para. 53; Case of Loayza-Tamayo. Preliminary Objections. Judgment
of January 31, 1996. Series C No. 25, para. 40; and Case of Castillo-Páez. Preliminary Objections.
Judgment of January 30, 1996. Series C No. 24, para. 40.
4
Cf. Case of the Mayagna (Sumo) Awas Tingni Community. Preliminary Objections, supra note 3,
para. 53; Case of Castillo-Petruzzi. Preliminary Objections. Judgment of September 4, 1998. Series C No.
41, para. 56; and Case of Loayza-Tamayo. Preliminary Objections, supra note 3, para. 40.
5
Cf. Case of the Mayagna (Sumo) Awas Tingni Community. Preliminary Objections, supra note 3,
para. 53; Case of Durand and Ugarte. Preliminary Objections. Judgment of May 28, 1999. Series C No. 50,
para. 33; and Case of Cantoral-Benavides. Preliminary Objections. Judgment of September 3, 1998.
Series C No. 40, para. 31.