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petition for review, in the case of Mr. Mauricio Herrera Ulloa; and c) petition
seeking habeas corpus relief in the case of Mr. Fernán Vargas Rohrmoser; and
2)
alleged “belated introduction” (and even material nonexistence) of the
court order alleged to have caused Mr. Vargas Rohrmoser harm.
*
*
*
FIRST PRELIMINARY OBJECTION
Failure to exhaust domestic remedies
The State’s allegations
76.
The State pointed out that under articles 10 and 48 of the Constitution of
Costa Rica, there are four judicial mechanisms that ensure the exercise of human
rights to all persons subject to its jurisdiction: 1) a legal action filed to challenge
constitutionality; 2) judicial consultation on constitutionality; 3) the remedy of
habeas corpus, and 4) the remedy of amparo. These remedies were not exhausted.
It alleged that:
a)
Law No. 7135, the Constitutional Jurisdiction Act of October 11, 1989,
states that the purpose of a legal action challenging constitutionality is to
combat laws and other general provisions that violate, either by action or
omission, some constitutional precept or principle;
b)
under the Costa Rican system, any private party may file an action
challenging constitutionality either through a “judicial motion or through legal
action.” The “motion” applies when a court decision is pending, even in the
case of petitions of habeas corpus or amparo, or in the proceeding to exhaust
the administrative avenue. Challenging a provision or act as unconstitutional
is a reasonable means to protect a subjective right or a legitimate interest
believed to have been wronged. The “legal action” avenue is broader in the
sense that anyone has active legal standing to bring the action, regardless of
whether that person is claiming direct or indirect injury. No court decision
need be pending and the action can be brought to defend diffuse interests or
the interests of the group as a whole;
c)
the efficacy of an action challenging constitutionality stems from the
effects that follow from a finding of unconstitutionality when an action is filed
alleging that a provision does not apply because it is contrary to the
Constitution or a violation of some fundamental right contained in
international human rights instruments. Those effects, which are retroactive
for the accused or convicted, are: nullification of the provision or act being
challenged; res judicata; elimination of the provision or act from the juridical
system; grounds for suspension of the statute of limitations, and grounds for
prejudiciality;
d)
an action challenging constitutionality is an effective and adequate
domestic remedy that would have enabled Costa Rica’s Constitutional Court to
examine the criminal law that criminals and punishes offenses against honor
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