13.a.2). This alleged violation occurred and ended before the date of acceptance of the
Court’s jurisdiction.
27.
The Court has established that when a State acknowledges its international
responsibility for violations of the American Convention that occurred before it accepted the
Court’s jurisdiction, it waives the temporal limitation on the exercise of the Court’s
competence with regard to the facts or the violations acknowledged, thereby giving its
consent for the Court to examine the events that occurred and to rule on the violations that
occurred in this regard. 21 Therefore, based on the State's acknowledgment of responsibility,
the Court finds that, in this case, it has competence to examine the alleged violation of
Articles 13 and 16 of the Convention to the detriment of Edgar Fernando García.
V
PRIOR CONSIDERATIONS
A) Regarding the preliminary objection
28.
In its answering brief, the State indicated that “in this case, domestic remedies have
not been exhausted” and this together with the “complementary and subsidiary nature […]
[of the inter-American system…], le[d] to filing the failure to exhaust domestic remedies as
a preliminary objection.” During the public hearing, the State “withdr[ew] the preliminary
objection of failure to exhaust domestic remedies.” However, in its final written arguments,
the State “reiterate[d] the preliminary objection of failure to exhaust domestic remedies
filed in the answering brief.”
29.
In its final observations, the Commission “emphasize[d] that, during [the] public
hearing, the State withdrew the preliminary objection filed in its answering brief”; hence, it
asked the Court to “take [the said] waiver into account and to proceed to analyze the merits
of the case.” The representatives did not refer to the State’s withdrawal of the preliminary
objection.
Considerations of the Court
30.
Article 42(1) of the Court’s Rules of Procedure establishes that preliminary objections
may only be filed in the answering brief. The filing of the preliminary objection of failure to
exhaust domestic remedies is a procedural right of the State. Therefore, the State may
waive this right at any time during the proceedings. 22
31.
In the instant case, the State filed a preliminary objection of failure to exhaust
domestic remedies in its answering brief. On the next procedural occasion, the public
hearing, the State clearly and precisely indicated that it withdrew this preliminary objection.
Nevertheless, subsequently, in its final written arguments, the State “reiterate[d]” the
preliminary objection. This Court recalls that, under international practice and pursuant to
its case law, when a party to litigation adopts a specific position that is detrimental to itself
21
In this regard, see, Case of Ticona Estrada et al. v. Bolivia. Merits, reparations and costs. Judgment of
November 27, 2008. Series C No. 191, para. 30; Case of Ibsen Cárdenas and Ibsen Peña v. Bolivia, supra, para.
22. See also, Case of González Medina and family members v. Dominican Republic. Preliminary objections, merits,
reparations and costs. Judgment of February 27, 2012. Series C No. 240, para. 192.
22
Cf. Matter of Viviana Gallardo et al. Series A No. G 101/81, para. 26, and Case of González Medina and
family members v. Dominican Republic, supra, footnote 16.
12