14
IV
42.
The first question to be examined in this Case is that concerning the non-exhaustion
of domestic remedies, which the Government has raised as a preliminary objection and
which this Court decided in its Judgment of January 27, 1995, would be resolved at the
same time as the merits of the Case "inasmuch as it relates to the judicial remedies existing
in Nicaragua, and their applicability and effectiveness" (supra 22).
43.
The Government held that the Commission should not have admitted the petition
when it was submitted on February 15, 1991, since the requirement to exhaust domestic
remedies established in Article 46(1) of the Convention had not been fulfilled, the criminal
case initiated as a result of the youth Genie-Lacayo's death having been in progress at that
time. In support of its objection, the Government cited the proceedings in the State's
criminal courts, both civil and military, and their abundant incident. It further averred that
none of the circumstances provided for in Article 46(2), which would have prevented
exhaustion of the remedies, had occurred, nor had there been any unwarranted delay in the
administration of justice.
44.
The Commission, for its part, asked for this objection be dismissed on the ground
that the party invoking the exhaustion of domestic remedies is obliged to specifically
identify them to the Commission, and Nicaragua had not done so; in its view, the domestic
remedies had indeed been fully exhausted.
45.
This Tribunal, in its Judgment on preliminary objections, considered that:
[in] the instant Case, the Commission's petition refers to Nicaragua's violation of Articles 8 (Right
to a Fair Trial), 25 (Right to Judicial Protection), and 24 (Right to Equal Treatment) of the
Convention, "as a result of the Judicial Branch's reluctance to prosecute and punish those
responsible and to order the payment of reparations for the damages caused" by the death of
Genie-Lacayo.
The Court feels that the articles invoked by the Commission refer to the
administration of justice and are closely related, as is logical, to the "internal remedies" whose
non-exhaustion Nicaragua alleges (Genie Lacayo Case, Preliminary Objections, supra 4, para. 29).
46.
At the same time, account should be taken of the fact that the Commission excluded
from its petition the violation of young Genie-Lacayo's right to life and right to humane
treatment, inasmuch as his death occurred prior to February 12, 1991, the date on which
the State accepted the jurisdiction of this Court, so that the merits of the Case are limited
exclusively to the consideration of breaches of procedure.
47.
The exhaustion of domestic remedies in a strictly procedural case concerns the
merits and these refer precisely to the Nicaraguan Judiciary's ineffectiveness in ruling on the
investigation and punishment, if appropriate, of the persons responsible for the death of
young Genie-Lacayo and on the reparations to which his relatives are entitled. This Court
therefore dismisses it on the basis of the evidence contained in the docket.
48.
However, the Commission must in all cases pay due attention to Article 46(1)(a) of
the Convention whereby it is called upon to take account of the prior exhaustion of domestic
remedies as an admissibility requirement which serves, inter alia, to determine the
timeliness of the petition submitted to it (Art. 47 of the Convention), subject, of course, and
if appropriate, to subsequent review by the Court, which shall be the body that rules on the
matter in the last resort.
V