15
on the same facts or grounds, the subject of a proceeding that is under way, or a
proceeding that is already resolved, are not admissible.” As regards amparo,
Decree-Law 25.569 excluded access to that guarantee, and it has not been proved
that there has been a modification of the aforementioned legislation which would
authorize the use of that remedy. It is appropriate to remember that in the LoayzaTamayo Case this Court determined that persons accused and tried, pursuant to the
provisions of the aforementioned Decree-Law No. 25.659, did not have access to the
right of petition for any guarantee to safeguard personal liberty. (Loayza-Tamayo
Case, Judgment of September 17, 1997. Serie C No. 33, para. 52).
63.
Moreover, on proposing the objection that is now examined, the State did not
explore the applicability of habeas corpus and amparo in this case, nor did it
demonstrate the general effectiveness of these remedies in matters such as the
present one, by showing that they would be adequate and available. It is evident,
and the Court has so decided, that the State must prove the effectiveness of the
domestic remedies. (In the Matter of Viviana Gallardo et. al., supra 56; Velásquez
Rodríguez Case, Preliminary Objections, supra 56; Fairén Garbi and Solís Corrales
Case, Preliminary Objections, supra 56; Godínez Cruz Case, Preliminary Objections,
supra 56; Velásquez Rodríguez Case, Judgment of July 29, 1988. Series C No 4,
para. 64; Godínez Cruz Case, Judgment of January 20, 1989. Series C No. 5, para
67; Fairén Garbi and Solís Corrales Case, supra 56; Neira Alegría et al., Preliminary
Objections, supra 56; Gangaram Panday Case, supra 56; Caballero Delgado and
Santana Case, Preliminary Objections, supra 56; Castillo Páez Case, Preliminary
Objections, supra 56; Loayza Tamayo Case, Preliminary Objections, supra 56).
64.
In light of the above, the Court deems this preliminary objection to be
inadmissible.
Third Objection
65.
The third objection interposed by the State concerns the lack of a prior
demand and of the lack of the exhaustion of the domestic remedies of Peru with
respect to the alleged violation of Article 29 of the American Convention in relation to
the Vienna Convention on Consular Relations.
66.
The Court summarizes the arguments of the State and Commission on this
point as follows:
a. The State asserted that “it offered the Chilean consular officials all of the
facilities to visit the persons of their nationality who were detained.” It stated
that Report 17/97 did not contain any recommendation about the alleged
violation of Article 29 of the American Convention in conjunction with the
Vienna Convention on Consular Relations, and that because the domestic
jurisdiction of Peru had not been exhausted as to this question, the Court
should reject this point of the application. In the public hearing, the State
indicated that the report of the Chilean delegation’s visit, “had not been a
topic of debate and discussion at the level of the Inter-American Commission
[nor] had it been a subject of the confidential report.
b. The Commission asserted that neither the American Convention nor the Rules
of Procedure establish that the application must be an exact replica of the
report provided for in Article 50 of the Convention. It added that Report
17/97 stated that the Chilean delegation, which was prohibited from visiting