2
is creating a ius constitutionale commune in the subject of human rights for the
American continent, or at least, for Latin America (paras. 85 to 88).
II. PRELIMINARY OBJECTION OF “FOURTH INSTANCE”
AND “CONTROL OF COMPLIANCE”
4.
The respondent State asserted the preliminary objection of the I/A Court of
H.R.’s lack of jurisdiction given that it considered that what was intended for the
international instance consisted in reviewing the criminal procedures that were
followed by all competent judicial instances at the domestic level, where remedies
(appeals) were also filed, as were amparo appeal hearings; moreover, it is affirmed
that the “control of compliance” was exercised ex officio, which makes the InterAmerican Court incompetent in that it cannot “review” that which was adjudicated
and decided previously by the domestic judges whom applied conventional
parameters, that is, parameters that fall within treaty obligations. This argument
regarding the prior exercise of the “control of compliance” in the domestic forum,
as a preliminary exception, is innovative and was the subject of special attention by
the judges of the I/A Court of H.R.
5.
In principle, we must remember that the I/A Court of H.R. has held that “if
the State has violated its international obligations due to the actions of its judicial
bodies, this may lead the [Inter-American] Court to examine the respective
domestic processes to establish their compatibility with the American Convention,3
that which may possibly include the decisions of higher courts.”4
6.
In this regard, although there is constant jurisprudence on preliminary
objections regarding the “fourth instance,” this is the first time that it is argued
that domestic courts effectively exercised the “control of compliance” in an ordinary
[civil] process that was followed in all the instances, including the ordinary and
extraordinary remedies filed, which cannot thereby be analyzed by the judges of
the Inter-American Court upon implying a revision of that decided by the domestic
courts that applied Inter-American norms. As such, the I/A Court of H.R. reiterates
that although international protection in the form of a convention reinforc[es] or
complement[s] the protection provided by the domestic law of the American
states,” as stated in the Preamble to the American Convention on Human Rights
(principle of subsidiarity that has also been recognized from its initial
jurisprudence),5 the fact is that in order to carry out an evaluative analysis of the
compliance with certain international obligations, “there is an intrinsic relationship
between an analysis of international and domestic law.” (para. 16 of the
Judgment).
3
Cf. Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits. Judgment of
November 19, 1999. Series C No. 63, para. 222; Case of Escher et al. v. Brazil. Preliminary Objections,
Merits, Reparations and Costs. Judgment of July 6, 2009. Series C No. 200, para. 44, and Case of Da
Costa Cadogan v. Barbados. Preliminary Objections, Merits, Reparations and Costs. Judgment of
September 24, 2009, Series C No. 204, para. 12.
4
Cf. Case of Gomes Lund et al. (“Guerrilha do Araguala”) v. Brazil. Preliminary Objections,
Merits, Reparations and Costs. Judgment of November 24, 2010, para. 49.
5
Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4,
para. 61: “The rule of prior exhaustion of domestic remedies allows the State to resolve the problem
under its domestic law before being confronted with an international proceeding. This is particularly
true in the international jurisdiction of human rights, because the latter ‘reinforces or complements’ the
domestic jurisdiction (American Convention, Preamble).”
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