The Court emphasizes that it is not up to the international organs to correct the imprecision
in the State’s arguments. 32
24.
The Court observes that the first point to be determined in relation to this objection
is the type of arguments submitted by the State prior to the issue of the admissibility
report; in other words, at the proper procedural moment for filing this objection. In this
regard, the State only submitted one brief in relation to this matter, on January 23, 2004, in
which it indicated that one of the victims “could have filed an application for amparo.” 33 The
brief in which the State analyzed the possible effectiveness of the contentious administrative
jurisdiction to decide this case was submitted in 2008, 34 four years after the admissibility
report was issued. Consequently, the Court considers that the arguments presented
regarding the need to exhaust contentious administrative proceedings or bring an action for
the failure to regulate the IVF procedure in keeping with the parameters established by the
Constitutional Chamber, are time-barred and therefore the analysis will focus on the
arguments concerning the remedy of amparo.
25.
With regard to the exhaustion of the remedy of amparo, the State raised two
different arguments. First, with regard to the scope that the State attributed to the decision
adopted by the Constitutional Chamber in this case, the State considered that this decision
did not imply a prohibition of IVF but rather of a means of practicing this procedure. Thus, it
claimed that the victims had other possibilities to address their infertility and, if appropriate,
to use the application for amparo if these alternatives were denied. The Court considers that
this is a matter of merits which will be decided opportunely when determining whether the
Constitutional Chamber’s decision constituted a limitation of the rights of the presumed
victims (infra paras. 160 and 161). In this regard, the Court has stated that preliminary
objections are acts that seek to prevent the analysis of the merits of a disputed matter by
contesting the admissibility of a case or the competence of the Court to hear a specific case
or any of its aspects, due either to the person, matter, time, or place, provided that these
objections are of a preliminary nature. 35 Since this first claim by the State cannot be
examined without previously analyzing the merits of the case, it cannot be examined by
means of this preliminary objection. 36
26.
Second, the State argued that an application for amparo could have provided the
Constitutional Chamber with a fresh opportunity to assess the possible violation of rights in
the instant case. In this regard, the Court observes that it is an uncontested fact that a final
and binding decision from the highest court of Costa Rica on constitutional matters exists
declaring that the practice of in vitro fertilization, as regulated
at the time, was
unconstitutional. As will be analyzed below in more detail (infra para. 135), the purpose of
this case is to determine whether this decision by the Constitutional Chamber entailed the
State’s international responsibility. Consequently, the matter of exhaustion of remedies is
related to the remedies existing against the ruling of unconstitutionality. In this regard, the
32
Cf. Case of Reverón Trujillo, para. 23, and Case Furlan and family v. Argentina, para. 25. See also: ECHR,
Case of Bozano v. France, Judgment of 18 December 1986, para. 46.
33
Brief No. 03-AM-03 presented to the Inter-American Commission on January 23, 2004, by the Minister of
Foreign Affairs of Costa Rica (file of attachments to the merits report, volume III, folio 1056 and 1058).
34
Brief No. DJO-486-08 of November 17, 2008 (file of annexes to the merits report, volume V, folio 2276).
35
Cf. Case of Las Palmeras v. Colombia. Preliminary objections. Judgment of February 4, 2000. Series C No.
67, para. 34, and Case of Vélez Restrepo and family v. Colombia. Preliminary objection, merits, reparations and
costs. Judgment of September 3, 2012. Series C No. 248, para. 30
36
Similarly, Cf. Case of Castañeda Gutman v. Mexico. Preliminary objections, merits, reparations and costs.
Judgment of August 6, 2008. Series C No. 184, para. 39, and Case of Vélez Restrepo and family v. Colombia.
Preliminary objection, merits, reparations and costs. Judgment of September 3, 2012. Series C No. 248, para. 30.