IV PRELIMINARY OBJECTIONS 13. The State submitted two preliminary objections: (1) the violation of the State’s right to defense during the proceedings before the Inter-American Commission and (2) the failure to exhaust domestic remedies. The Court will analyze each objection individually. A. Preliminary objection regarding the violation of the State’s right to defense A.1 Arguments of the State and of the Commission 4 14. The State noted that the initial petition was presented on March 29, 2000, Admissibility Report No. 148/11 was approved on November 1, 2011, and the Merits Report was approved on February 12, 2019. It stated that more than 11 years passed between the first action and the second, and almost 19 years passed between the first action and the third. It asserted that “the excessive length of the proceedings” affected the “State’s defense” because (a) due to “[t]he passage of time, [it] faced difficulties in securing evidentiary support;” (b) the “factual account” of the case “has changed over time,” 5 and (c) as circumstances of fact changed, the petitioner sought to be released from the obligation to exhaust domestic remedies for some of them. 6 15. The Commission maintained that a “legality review” of its actions should be carried out on an “extremely limited and exceptional” basis and that such a review is only admissible with respect to serious errors that affect the right to defense of the State, which has the burden of proof for it. It argued that during the case proceedings, it informed the State of all communications and evidence submitted by the petitioner, and that the State had multiple opportunities to conduct its defense. A.2 Considerations of the Court 16. The Court recalls that in matters under its consideration, it can review the legality of the Commission’s actions, and that such a review can be appropriate in those cases in which one of the parties alleges a serious error that violates its right to defense, in which case that party shall fully demonstrate the harm. 7 4 The representatives, as has been established (supra para. 8), submitted their observations on the State’s preliminary objections late. As their arguments were not presented at the proper time, it is not appropriate to take them—or the assertions the representatives made concerning those preliminary objections in their final arguments— into consideration. 5 The State noted that the Merits Report includes both circumstances that occurred prior to the initial petition in 2000 and circumstances that occurred after it, as well as both circumstances that occurred before the release of the Admissibility Report in 2011 and after it, until 2019, when the Merits Report was issued. It argued that this creates a “variable” factual framework as well as “procedural uncertainty” with respect to that framework. 6 Specifically, with regard to its argument about the violation of its right to defense, Ecuador stated that “at the beginning of the proceedings, the State argued that because the criminal trial against Mr. Cortez was in process, it was appropriate to argue that domestic remedies had not been exhausted. Later, however, after that trial ended and the alleged victim expressed his disagreement with the duration of the proceedings, it was clearly appropriate for the State to inform the Court that he intended to use it as an additional instance to release him from the obligation to exhaust domestic remedies.” 7 Cf. Case of the Saramaka People v. Suriname. Preliminary objections, merits, reparations, and costs. Judgment of November 28, 2007. Series C No. 172, para. 32, and Case of the National Federation of Maritime and Port Workers (FEMAPOR) v. Peru. Preliminary objections, merits, and reparations. Judgment of February 1, 2022. Series C No. 448, para. 18. 6