35
82.
In its submission of November 30, 2001, the State raised the issue of nonexhaustion of domestic remedies with the Commission, 28, but the only remedy not
exhausted that the State cited was the “action challenging constitutionality.”
83.
Based on the criteria cited above (supra para. 81), the Court finds that
inasmuch as the State did not allege a failure to exhaust the remedies of review and
habeas corpus during the proceedings before the Inter-American Commission, it
implicitly waived one means of defense that the American Convention creates in its
favor, and tacitly admitted that such remedies either do not exist or were exhausted
in a timely manner. 29 Therefore, the principle of estoppel prevents the State from
raising this argument, for the first time, in its brief answering the application and its
observations on the written brief of pleadings, motions and evidence (supra para.
33).
84.
A different situation presents itself in the case of the “action challenging
constitutionality,” since in its November 30, 2001 brief, during the admissibility
proceeding conducted by the Inter-American Commission on Human Rights, the
State argued the failure to substantiate this remedy.
85.
The Court is compelled to point out that the action challenging
constitutionality is an extraordinary recourse whose purpose is to question the
constitutionality of a law, not to have a court ruling reviewed. Hence, the action
challenging constitutionality cannot be counted among the domestic remedies that a
petitioner is necessarily required to pursue and exhaust.
86.
In its Admissibility Report No. 128/01 of December 3, 2001, the Commission
wrote that the “central object of the petition” filed with the Commission was the
sanction that the November 12, 1999 judgment the Criminal Court of the First
Judicial Circuit of San José imposed, and that by filing a writ of cassation, the alleged
victims had exhausted the domestic remedies. 30
87.
The Court has no grounds to re-examine the Commission’s reasoning, which
is completely consistent with the relevant provisions of the Convention. The Court,
therefore, dismisses the first preliminary objection.
*
*
*
SECOND PRELIMINARY OBJECTION
33; and Case of Cantoral Benavides. Preliminary Objections. Judgment of September 3, 1998. Series C
No. 40, para. 31.
28
Cf. Brief answering the questions posed by the Inter-American Commission on Human Rights at
the November 16, 2001 hearing (file of proceedings with the Inter-American Commission on Human
Rights, volume II, folios 273 to 277).
29
Cf. Case of Mayagna (Sumo) Awas Tingni Community. Preliminary Objections, supra note 25,
para. 56; Case of Castillo-Petruzzi et al. Preliminary Objections, supra note 26, para. 56; and Case of
Loayza-Tamayo. Preliminary Objections, supra note 25, para. 43.
30
Cf. Admissibility Report of the Inter-American Commission on Human Rights No. 128/01 (file of
the proceeding before the Inter-American Commission on Human Rights, Volume II, folio 296).
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