7
important, however, is that as far as concerns the exhaustion of domestic remedies
the Government has made two contradictory statements about its domestic law.
Regardless of the veracity of either of these statements, that contradiction affects
the procedural situation of the other party.
30.
This contradiction has a direct bearing on the inadmissibility of petitions
lodged after the “period of six months from the date on which the party alleging
violation of his rights was notified of the final judgment” (Art. 46(1)(b) of the
Convention) with regard to the exhaustion of domestic remedies.
In fact, since that period depends on the exhaustion of domestic remedies, it is for
the Government to demonstrate to the Commission that the period has indeed
expired. Here, again, the Court’s earlier decision regarding the waiver of nonexhaustion of domestic remedies is relevant:
Generally recognized principles of international law indicate, first, that this is a rule that
may be waived, either expressly or by implication, by the State having the right to
invoke it, as this Court has already recognized (see Viviana Gallardo et al., Judgment
of November 13, 1981, No. G 101/81. Series A, para. 26). Second, the objection
asserting the non-exhaustion of domestic remedies, to be timely, must be made at an
early stage of the proceedings by the State entitled to make it, lest a waiver of the
requirement be presumed. Third, the State claiming non-exhaustion has an obligation to
prove that domestic remedies remain to be exhausted and that they are effective.
(Velásquez Rodríguez Case, Preliminary Objections, Judgment of June 26, 1987.
Series C No. 1, para. 88; Fairén Garbi and Solís Corrales Case, Preliminary
Objections, Judgment of June 26, 1987. Series C No. 2, para. 87; and, Godínez
Cruz Case, Preliminary Objections, Judgment of June 26, 1987. Series C No. 3,
para. 90.)
31.
For the above reasons, Peru cannot validly interpose in these proceedings the
objection of lack of jurisdiction based on Article 46, paragraph (1)(b) of the
Convention.
32.
The Government has interposed another preliminary objection based on the
fact that the Commission submitted the case to the Court after the expiration of the
term specified in Article 51, paragraph (1), of the American Convention. Under that
provision, the Commission has a period of three months from the date of the
transmittal of the report to the Government concerned in which to submit a case.
After that period, the Commission no longer has the power to do so.
In the instant case, Report Nº.43/90 was transmitted to Peru on June 11, 1990. The
case was referred to the Court on October 10 of that same year. Peru contends that
since the three month period which commenced on June 11 had elapsed, the
Commission no longer had the right to submit the case.
33.
There exists no disagreement between the parties as to the dates mentioned
above. Since Report Nº 43/90 was transmitted to the Government of Peru on June
11, 1990, the Commission should have submitted the matter to the Court within the
period of three months following that date.
On August 14, 1990, before that period had expired, Peru requested a 30 day
extension from the Commission (supra 21). By note of August 20, 1990, the latter
granted the requested extension as of September 11, 1990.