17. Regarding the second matter, the State argued that, within the framework of the amparo
process, Mrs. Moya Solís did not indicate that her rights had been impacted under the regulatory
framework applied in the ratification process. It also pointed out that this matter was not
expressly invoked in the petition filed with the Inter-American Commission and it was not
mentioned in the Admissibility Report. Notwithstanding, the Merits Report referred to the legal
framework of the ratification process and indicated that “it did not establish duly defined grounds
[…]”. Therefore, it alleged that it did not have the opportunity to present arguments in relation to
this matter or to present the corresponding preliminary objection at the appropriate procedural
stage, thereby affecting its right to defense. It asked the Court to duly monitor the legality of the
actions of the Inter-American Commission and accept the preliminary objection.
18. The presumed victim argued that she had exhausted domestic remedies and that,
according to Law 23,369, the available remedy was that of review before the Supreme Court.
Regarding the State's argument that she had not questioned the regulatory framework applied
to her, it indicated that challenges through appeal, complaint, review or any other means are
against the immediate act in violation of the law.
19. The Commission indicated that the admissibility decision in this case was adopted in
accordance with the information available at the time of that pronouncement and in light of the
criteria historically applied in the exercise of said function under the Convention. Therefore, the
content of its decision, adopted in accordance with the Convention and the Commission's Rules
of Procedure, should not be subject to a new examination in later stages of the proceedings. It
also indicated that the State did not make an allegation of failure to exhaust domestic remedies
in a timely manner, therefore its preliminary objection is outside time limits. In this regard, it
recalled that, in accordance with the reiterated case law of the Inter-American Court, the objection
of failure to exhaust domestic remedies must be presented in a timely manner, otherwise, the
State loses the possibility of presenting that defense before the Court. It also stressed that it is
not necessary to exhaust extraordinary remedies.
20. In relation to the alleged violation of the principle of legality, the Commission held that the
litigation throughout the process dealt with the punitive administrative process of ratification,
which culminated in the removal of the presumed victim from her position and that this evidently
encompasses the applicable regulatory framework. Therefore, it considered that the State's
argument is not justified, in the sense that this matter was not part of the litigation and therefore
it could not argue the lack of exhaustion of domestic remedies on that specific aspect at the
appropriate procedural moment. In the Commission's opinion, the alleged violation of the principle
of legality derives from the main violation. In addition, it highlighted that it is not the practice of
the organs of the Inter-American System to demand the exhaustion of domestic remedies
separately and autonomously against each of the effects derived from an alleged violation. It
requested that the preliminary objection filed by the State be dismissed due to its
extemporaneous nature and due to its lack of substantive legal basis.
A.2 Considerations of the Court
21. The Court recalls that an objection to the exercise of its jurisdiction based on the alleged
failure to exhaust domestic remedies must be presented during the admissibility stage of the case
before the Commission6. To this end, the State must, first, clearly specify before the Commission,
during the admissibility stage of the case, the remedies that, in its opinion, have not yet been
exhausted. On the other hand, the arguments that inform the preliminary objection filed by the
6
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections. Judgment of June 26, 1987. Series C No. 1, Para. 88, and Case of
Martínez Esquivia v. Colombia. Preliminary Objections, Merits and Reparations. Judgment of October 6, 2020. Series C No. 412, para. 21.
6