7
petition” by filing an application with the Court. Consequently, basing itself on the
provisions of Article 27(2) of its Rules, under which “[t]he preliminary objection shall
set out the facts and the law on which the objection is based,” the Court will not deal
with this objection.
37.
The Court will now examine the objection of non-exhaustion of domestic
remedies to which Article 46(1)(a) of the Convention refers. That article provides
that:
Article 46
1. Admission by the Commission of a petition or communication lodged in
accordance with Articles 44 or 45 shall be subject to the following requirements:
a. that the remedies under domestic law have been pursued and exhausted in
accordance with generally recognized principles of international law;
[. . .]
38.
This requirement
allows the State to resolve the problem under its internal 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). (Velásquez Rodríguez Case, Judgment of July
29, 1988. Series C No. 4, para. 61; Godínez Cruz Case, Judgment of January 20,
1989. Series C No. 5, para. 64; Fairén Garbi and Solís Corrales Case, Judgment
of March 15, 1989. Series C No. 6, para. 85.)
The Court has stated that:
Generally recognized principles of international law indicate, first, that this is a rule that
may be waived, either expressly or by implication, by the State having the right to
invoke it, as this Court has already recognized (see Viviana Gallardo et al., Judgment
of November 13, 1981, No. G 101/81. Series A, para. 26). Second, the objection
asserting the non-exhaustion of domestic remedies, to be timely, must be made at an
early stage of the proceedings by the State entitled to make it, lest a waiver of the
requirement be presumed. Third, the State claiming non-exhaustion has an obligation to
prove that domestic remedies remain to be exhausted and that they are effective.
(Velásquez Rodríguez Case, Preliminary Objections, supra 18, para. 88; Fairén
Garbi and Solís Corrales Case, Preliminary Objections, supra 18, para. 87;
Godínez Cruz Case, Preliminary Objections, supra 18, para. 90. See also In the
Matter of Viviana Gallardo et al., No. G 101/81. Series A.)
[T]he rule of prior exhaustion is a prerequisite established in favor of the State, which
may waive its right, even tacitly, and this occurs, inter alia, when it is not timely
invoked. (Fairén Garbi and Solís Corrales Case, ibid., para. 109.)
39.
The Court notes that the Government did not interpose the objection of nonexhaustion of domestic remedies before the Commission, a fact that was expressly
confirmed by the Agent during the public hearing of December 2, 1991. This
constitutes a tacit waiver of the objection. The Government also failed to indicate in
a timely fashion the domestic remedies that, in its opinion, should have been
exhausted or how they would be effective.
40.
Consequently, the Court considers that the Government is untimely when
it now seeks to invoke the objection of non-exhaustion of domestic remedies
that it should have interposed before the Commission but did not.