Arguments of the Commission and of the Parties
26.
The State presented an objection regarding the failure to exhaust domestic
remedies. It held that the alleged victims did not exhaust the remedies available to them in
the domestic courts and therefore the Court should declare the petition inadmissible. It
argued that the remedy of unconstitutionality was appropriate to address the claims of the
alleged victims, since its purpose was to revoke the action challenged and annul its effects.
The State argued that it was a simple remedy to pursue, and that there was no justification
for not having done so. Regarding the contentious-administrative remedy, the State argued
that this remedy could be used by “any natural and juridical person against regulations, acts
and resolutions of the Public Administration[…] that impair the rights established […] by
law.”
27.
The Commission held that “the State’s arguments were duly analyzed” at “the proper
procedural stage”, that is, “during the admissibility stage.” As regards the
unconstitutionality suit, the Commission specified that in its admissibility report it had
examined “the lack of access to the remedy because of the requirement to collect 1000
signatures, a requirement that the Commission considered ‘excessive’, expressly indicating
that if ‘the domestic remedy is conceived in such a manner as to be practically inaccessible
to the alleged victim, certainly there is no obligation to exhaust it in order to remedy the
legal situation.’” Furthermore, the Commission pointed out that “the State did not offer any
arguments concerning the appropriateness of using the contentious administrative remedy
to challenge violations of constitutional rights.” The Commission added that “the
Constitutional Court itself had already established that [an unconstitutionality suit] was the
only admissible action to suspend the effects of a parliamentary resolution.”
28.
The representatives presented similar arguments. As regards the unconstitutionality
suit, they pointed out that the available domestic legal options did not provide for direct
access to the Constitutional Tribunal given that “in the case of the signatures, the waiting
period would be the length of time it took to collect these, while the process before the
Ombudsman’s Office was not regulated and the unconstitutionality suit did not have the
scope to determine reparations to those affected.” They offered various arguments
regarding the supposed lack of independence and impartiality of the Constitutional Tribunal
that would hear the matter. As to the contentious-administrative action, the representatives
argued that “in this case, the [alleged] victims [did] not only not seek financial reparation,
but also reinstatement in their positions and comprehensive reparation, which includes an
acknowledgement of the violations, measures of satisfaction and guarantees of nonrepetition.”
Considerations of the Court
29.
Having regard to Article 42(6), and in accordance with the provisions of Articles 61,
62 and 64 of its Rules of Procedure, the Court considers that, by acknowledging
responsibility in this case, the State has accepted the Court’s full jurisdiction to hear it;
consequently, the preliminary objection regarding the failure to exhaust domestic remedies,
is, in principle, incompatible with that acknowledgement. 15 Consequently, the objection
raised has no purpose and it is not appropriate to analyze it. 16
15
Similarly, regarding a preliminary objection for failure to exhaust domestic remedies, Cf. Case of the
“Massacre of Mapiripán” v. Colombia. Preliminary objections. Judgment of March 7, 2005. Series C No. 122, para.
30, and Case of the Kichwa Indigenous People of Sarayaku v. Ecuador. Merits and Reparations. Judgment of June
27, 2012. Series C No. 245, para. 30.
16
Similarly, the Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, para. 30.
10