remedies, given that their purpose is suitable to “protect the infringed legal
situation” and they would be “able to produce the result for which they were
established to produce.”
25.
The representatives argued that the sole purpose for the civil action for
damages is to “establish the economic values in favor of the petitioner,” without
allowing, “by way of said judicial remedy, for a judge to order measures of
reparation of a non-patrimonial nature such as the reinstatement of the petitioner in
the armed forces, public apologies to the [alleged] victim or his family, and
guarantees of non-repetition, among others, for which said remedy is not
appropriate to fully repair the [alleged] victim.” As such, the representatives
requested “that the second preliminary objection also be dismissed and for the Court
to continue on to an analysis of the merits of the case.”
26.
The Commission considered that “the requirement of non-exhaustion of
domestic remedies does not mean that the alleged victims have the obligation to
exhaust all of the remedies available to them.” Moreover, it noted that the “civil
action for damages was not the most appropriate remedy to achieve that which was
established by the Resolution of the Constitutional Tribunal.” In this sense, the
information provided to the Commission notes that the Resolution of the
Constitutional Tribunal, “according to said Court, was self-executable; therefore the
Executive Branch and the Armed Forces were obligated to comply” with the
Resolution of March 12, 2002. As such, the Commission considered “the objection
filed by the State of Ecuador to be unfounded and inadmissible, reason for which it
requested the Court to dismiss it.”
Considerations of the Court
27.
Article 46(1)(a) of the American Convention provides that in order to
determine admission by the Commission of a petition or communication lodged in
accordance with Articles 44 or 45 of the Convention, it is necessary that the domestic
remedies be pursued and exhausted in accordance with the generally recognized
principles of international law.12 The Court recalls that the principle of prior
exhaustion of domestic remedies is designed for the benefit of the State, given that
it attempts to excuse the State from going before an international body for acts
attributed to it, before having had the opportunity to remedy them using its own
means.13
28.
The foregoing means that these remedies must not only exist formally, but
rather that they must also be appropriate and effective, as shown by the exceptions
enshrined in Article 46(2) of the Convention.14
12
Cf. Case of Velásquez Rodríguez V. Honduras. Preliminary Objections. Judgment of Julne 26,
1987. Series C No. 1, para. 85; Case of Cabrera García and Montiel Flores V. México, supra note 5, para.
19; and Case of Vera Vera et al. V. Ecuador. Preliminar Objection, Merits, Reparations and Costs.
Judgment of May 19, 2011. Series C No. 224, para. 13.
13
Cf. Case of Velásquez Rodríguez. Merits, supra note 6, para. 61, and Case of Fairén Garbi and
Solís Corrales. Judgment of March 15, 1989, Series C No. 6, para 85.
14
Cf. Case of Velásquez Rodríguez V. Honduras. Preliminary Objections, supra note 12, para. 63;
Case of Vélez Loor V. Panamá. Preliminary Objections, Merits, Reparations and Costs. Judgment of
November 23, 2010. Series C No. 218, para. 19, and Case of Vera Vera et al. V. Ecuador, supra note 12,
para. 13.
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