in this case had mentioned that the State of Costa Rica recognized that the alleged
victims had exhausted the remedies available under the laws of Costa Rica to contest
the judicial sanction that had been imposed. They indicated that, in any case, in addition
to the time-barred and inadmissible nature of the objection filed by the State, the fact
that, initially, the latter had upheld a position in favor of admissibility in which it
recognized that the domestic remedies had been exhausted gave rise to the principle of
estoppel. Subsidiarily, they indicated that the State had not proved when, how or why
the remedy of unconstitutionality would have been an appropriate remedy against the
norms of the Criminal Code to prevent the alleged victims from being subject to criminal
proceedings. They added that it was not possible to file an action of unconstitutionality
against the definition of the offenses of defamation or libel by the press established in
articles 147 of the Criminal Code and 7 of the Printing Act because, once the Supreme
Court of Justice had handed down the final judgment convicting the alleged victims, it
would have been impossible to file the action of unconstitutionality, because to do so,
Costa Rican law required the existence of ongoing proceedings.
24. The Court recalls that Article 46(1)(a) of the American Convention establishes that
admission by the Commission of a petition or communication lodged in accordance with
Articles 44 or 45 requires that the remedies under domestic law have been pursued and
exhausted in accordance with generally recognized principles of international law. 13
However, this supposes not only that such remedies must exist formally, but also that
they must be adequate and effective, owing to the exceptions established in Article 46(2)
of the Convention. 14 In addition, it has been the consistent case law of this Court that an
objection to the exercise of the Court’s jurisdiction based on the supposed failure to
exhaust domestic remedies must be presented at the proper procedural moment; 15 that
is, during the admissibility procedure before the Commission, 16 and the remedies that
remained to be exhausted and their effectiveness must be indicated precisely.
25. In keeping with the above, the Court notes that, in the initial petition before the
Commission, the criminal proceedings, their result and, consequently, the laws that
supported this, formed part of the facts of which the State was made aware. This also
meant that the conventionality of the laws applied by the domestic courts was called into
question from the time of the said initial petition. Therefore, the State had the procedural
burden of presenting its arguments on admissibility based on those facts at the first
possible opportunity before the Commission 17 and, in this case, this corresponded to the
admissibility stage; all this without prejudice to other violations, strictly related to the
same facts, being alleged at a subsequent stage. Thus, even though the State was aware
of, and was able to comment on the facts related to the criminal proceedings and the
laws that were applied from the moment the initial petition was forwarded to it, it did
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections. Judgment of June 26, 1987. Series
C No. 1 para. 85, and Case of the National Federation of Maritime and Port Workers (FEMAPOR) v. Peru, supra,
para. 25.
13
Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 63,
and Case of the National Federation of Maritime and Port Workers (FEMAPOR) v. Peru, supra, para. 25.
14
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections, supra, para. 88, and Case of the
National Federation of Maritime and Port Workers (FEMAPOR) v. Peru, supra, para. 26.
15
Cf. Case of Herrera Ulloa v. Costa Rica. Preliminary objections, merits, reparations and costs. Judgment
of July 2, 2004. Series C No. 107, para. 81, and Case of the National Federation of Maritime and Port Workers
(FEMAPOR) v. Peru, supra, para. 26.
16
Cf. Case of Mémoli v. Argentina, supra, para. 50, and Case of the National Federation of Maritime and
Port Workers (FEMAPOR) v. Peru, supra, para. 26.
17
8