16
the alleged victims, sent a report to the State on March 20, 1995, in which it
pointed out that Article 20 of Decree-Law No. 25.475 contravened the norms
of the Vienna Convention on Consular Relations, because it authorized the
total isolation of the prisoners.
On June 6, 1995, the State sent its
observations on the Commission’s report, and did not make reference to the
suspension of the visits. During the public hearing before the Court, the
Commission indicated that it had not included the subject of the consular visit
in its report, given that those detained had already been convicted, and for
that reason “there was no possibility of redress because the injury had
already been inflicted and was irrevocable.”
67.
The matter here taken up could be examined in the light of various facts and
considerations, such as: the communication of October 19, 1993, that the State
maintains was sent to the Chilean consular representative of Chile in Peru concerning
the detention of the alleged victims, a copy of which, showing the stamp of receipt of
the corresponding consular office dated October 20, 1993, is included as an exhibit;
the nature of the commission of the Chilean delegation that attempted to interview
the alleged victims in the prison of Yanamayo, which was composed of members of
the Chilean Legislature; and the documentary evidence in the file regarding the
consular visits to María Concepción Pincheira-Sáez. The Court will not examine these
matters which would go to the merits of the case.
68.
However, the Court considers it relevant to indicate that the Commission did
not raise this issue in its Report 17/97. Although it is true that the application need
not necessarily be a simple reiteration of the report issued by the Commission, it is
also true that it should not contain types of violations of which the State was not
aware during the stage of the proceedings before the Commission itself, and which it
could not, therefore, refute at that time. It must be remembered that at that stage
the State could admit the facts alleged by the complainants, justifiably reject them,
or procure a friendly settlement which would avoid the submission of the case to the
Court. If the State is not aware of certain facts or particular statements which are
later raised in the application, it can not make use of the rights that assist it at that
procedural stage. It must be observed that this instance does not pertain to one of
the general obligations set forth in the American Convention (Articles 1(1) and (2)),
compliance with which the Court must officially examine (cf. Cantoral Benavides
Case, Preliminary Objections, Judgment of September 3, 1998. Series C No. 40,
para. 46)..
69.
For the aforementioned reasons, the Court deems that this preliminary
objection is admissible.
Fourth Objection
70.
The fourth objection raised by the State concerns the
lack of a prior demand and of the exhaustion of
the domestic remedies of Peru with
respect to the claim made in point six of the brief supporting the application, under
which the Court is to order the Peruvian State to immediately release and compensate
Jaime Francisco Castillo-Petruzzi, María Concepción Pincheira-Sáez, Lautaro Enrique
Mellad[o]-Saavedra, and Alejandro Astorga-Valdéz.
71.
The Court summarizes the arguments of the State and the Commission
pertaining to this objection in the following manner: