51. The Commission has jurisdiction ratione personae (over the person). Regarding its passive
ratione personae competence, the petitioners claim that the violations were committed by
government officials of Brazil, a member State. Article 1(1) of the Convention implies that any
impairment of rights guaranteed by the Convention, which can be attributed under the rules of
international law to the action or omission of any public authority, constitutes an act imputable
to the State. 17 Under Article 28 of the Convention, in the case of a federal state, such as Brazil,
the national government is responsible internationally for actions of the agents of entities
forming the federation.
52. Regarding its active ratione personae competence, Regulation 26(1) provides that “[a]ny
person or group of persons or nongovernmental entity legally recognized in one or more of the
member states of the Organization may submit petitions to the Commission, on one’s own
behalf or on behalf of third persons.” Therefore, the nongovernmental organizations, CDHMP,
HHRP and GIHRLS, have standing to petition on behalf of Nogueira.
A.
Admissibility Requirements
i.
Exhaustion of Domestic Remedies
53. The rule contained in Article 46(1)(a) of the Convention, requiring that any remedy offered
by domestic law first be pursued and exhausted, stipulates that the substance of all petitions
brought before the Commission must have first been heard by the domestic courts. This rule
allows states to resolve disputes under their own legal systems before facing international
proceedings. The petitioner notes that inquiries into Nogueira’s death were closed and the case
was shelved (arquivado). According to Brazilian law, once a case has been shelved, it may only
be reopened if new facts are found. Therefore, the Commission must analyze: a) whether the
State has invoked this exception and did so on time; and alternatively b) if the new facts have
a bearing on the admissibility of the case.
54. In its only reply, the State does not invoke the non-exhaustion of domestic remedies
objection. According to Article 46(1)(a) of the Convention, the remedies under domestic law
must have been exhausted for a petition to be admitted by the Commission. As the InterAmerican Court has pointed out, this is a rule that can be waived by the State either expressly
or by implication and to be timely it must be invoked at an early stage of the proceedings,
failing which the State may be presumed to have tacitly waived this requirement. 18 The
Commission considers that the State’s silence in this case constitutes a tacit waiver of the right
to invoke this objection and relieves the Commission of the need to continue to consider the
question of compliance. The Commission therefore declares the case admissible with respect to
this requirement.
55. In addition to the above, and even had the Commission not recognized a tacit waiver by
the State of its right to timely objection to nonexhaustion of the domestic remedies
requirement, the Commission considers that the exceptions stipulated in Article 46(2)(a)(b)
and (c) of the Convention would have applied. They allow for admission of cases when: 1) the
domestic legislation of the state concerned does not afford due process of law for the
protection of the right or rights that have allegedly been violated; and 2) the party alleging
violation of his rights has been denied access to the remedies under domestic law or has been
prevented from exhausting them. The Commission reached on the basis of the following facts.
56. It is an undisputed fact that the State shelved the case and ended the investigations seven
months after the death of Nogueira, without having made any serious effort to identify and try
the person or persons responsible.
17 Inter-American Court of Human Rights, Velásquez Rodríguez case, Judgment of July 29, 1999, paragraph 164.
18 Inter-American Court of Human Rights. Godínez Cruz case. Preliminary Objections. Judgment of June 26, 1987.
Series C, No. 3, paragraphs 90 and 91 state: 90. 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, paragraph 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. 91. The record shows that the Government failed to make a timely objection
when the petition was before the Commission and did not object at any time during the proceedings.
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