considered that the Court should have understood that it had filed a preliminary
objection and that this period for observations should be granted, it should have advised
the Court when it forwarded its answer, but it did not. It was only recently, during the
public hearing in this case, that the State asserted that it had filed a preliminary
objection in the answering brief and that, “although it had not included a special chapter
entitled ‘preliminary objection,’ it had mentioned that many of the individuals
represented by the Commission lacked legitimacy, because they had not exhausted the
domestic remedies.”
56.
According to this Court’s Rules of Procedure, in its answering brief the State
should file its preliminary objections, as well as refer to the alleged facts and the claims
concerning the merits and reparations made by the Inter-American Commission and the
representatives of the alleged victims. Since preliminary objections are not filed in a
previous brief, separate from the one where the State must answer the merits of the
case, the State must file its preliminary objections clearly, so that they are not mistaken
for its arguments to contest the facts and claims.
57.
Furthermore, the Court notes that, in its answering brief, the State indicated,
fundamentally, that the final negative decision issued in the administrative procedure
before the Central Bank of Uruguay “constituted an administrative act that could be
contested,” and regarding which it was possible to file an appeal for annulment before
the Contentious-Administrative Tribunal, but that only 38 alleged victims filed that
judicial remedy. In this regard, the Commission and the representatives argued that the
remedy of annulment was neither appropriate nor effective to resolve the claims of the
alleged victims and that, by failing to provide a remedy “that was able to examine all the
factual and legal issues related to the dispute,” the State had violated Article 25 of the
Convention.
58.
The Court finds that, in the circumstances of the instant case, the analysis of the
domestic remedies available and filed is directly related to the merits of the alleged
violations of Articles 8 and 25 of the Convention. In cases in which States have filed the
objection of failure to exhaust domestic remedies and the analysis of such remedies “is
closely related to the merits,”29 the Court’s case law has been consistent in analyzing the
arguments relating to the preliminary objection together with the other issues
concerning the merits.30 Consequently, the Court finds that, in the instant case, even if
Uruguay had, in its answering brief, clearly filed a preliminary objection, it would have
been necessary to analyze the corresponding arguments of the parties in connection
with the merits of the case, in order to determine whether Articles 8 and 25 of the
American Convention had been violated.
59.
Based on the above, the Court establishes that the information and arguments
presented by the State concerning the remedies available in the domestic jurisdiction,
their use by the alleged victims in this case, and their effectiveness, will be considered
when determining the facts of the instant case and when ruling on the alleged violations
of Articles 8 and 25 of the American Convention.
VI
29
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections. Judgment of June 26, 1987.
Series C No. 1, para. 91; Case of Fairén Garbi and Solís Corrales v. Honduras. Preliminary objections.
Judgment of June 26, 1987. Series C No. 2, para. 90; and Case of Castañeda Gutman v. Mexico. Preliminary
objections, Merits, reparations and costs. Judgment of August 6, 2008. Series C No. 184, para. 34.
30
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections. Judgment of June 26, 1987.
Series C No. 1, para. 96; Case of Salvador Chiriboga v. Ecuador. Preliminary objection and merits. Judgment
of May 6, 2008. Series C No. 179, para. 45, and Case of Castañeda Gutman v. Mexico. Preliminary objections,
merits, reparations and costs. Judgment of August 6, 2008. Series C No. 184, para. 35.
18