92.
Irrespective of the State’s arguments before the Court with regard to the preliminary
objection concerning failure to exhaust domestic remedies, the Court agrees with the
Commission’s observations, because it notes that, when answering the petition before the
Commission, the only mention made by the State of the exhaustion of domestic remedies
was that “the delay in the criminal action was justified by the complexity of the case and the
changes in the jurisprudence in proceedings relating to subjection to conditions similar to
slavery.” The State had presented no further arguments in this regard subsequently.
93.
The Court considers that the mention made by the State before the Commission does
not comply with the requirements of a preliminary objection of failure to exhaust domestic
remedies (supra, para. 89). This is because the State did not specify the domestic remedies
that were pending exhaustion or that were underway, or the reasons why it considered that
they were appropriate and effective. Therefore, the Court considers the preliminary objection
inadmissible.
I. Alleged prescription of the claim for reparation for pecuniary and non-pecuniary
damage before the Commission
I.1. Arguments of the State and observations of the Commission and of the
representatives
94.
The State alleged that, if the Court should consider that Brazil did not have
appropriate domestic remedies to provide reparation for pecuniary and non-pecuniary
damage, it would have to recognize that those claims had prescribed with regard to any
possible violations that occurred in 1988, 1992, 1996 and 1997. The claim for reparation of
pecuniary and non-pecuniary damage in relation to presumed violations that took place in
Hacienda Brasil Verde in 1989 was made before the Commission 10 years after the facts
occurred; that of 1992, 5 years and 8 months later, and that of 1996, 2 years later. In the
case of the facts that occurred in 1997, the pecuniary claims were made before the
Commission one year and four months after this. Consequently, it should be considered that
the claims for pecuniary reparation for those presumed violations had prescribed, because
the six-month statute of limitations had already expired when the case was lodged before
the Commission.
95.
The Commission indicated that the State had based its arguments on the premise
that specific domestic remedies relating to compensation had to be exhausted if the objective
was to obtain reparation in the international sphere. According to the Commission, it was not
necessary to exhaust independent remedies in order to obtain reparation, especially if other
mechanisms had been exhausted; thus, the objection should be considered inadmissible.
96.
Regarding the prescription of the possibiliy of requiring a criminal investigation, the
Commission reiterated that the State had been aware of the situation in Hacienda Brasil
Verde, and had failed to conduct a criminal investigation that could be considered effective.
In addition, it considered that the analysis of the opportune submission of the petition should
be made based on the case as a whole rather than on isolated facts.
97.
The representatives indicated that the State’s argument was groundless and,
therefore, the objection should be withdrawn, because the State did not file it at the proper
procedural moment and had based its arguments on the failure to exhaust domestic
remedies.
I.2. Considerations of the Court
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