23.
The Commission reiterated the indication regarding the issue of exhaustion in its
Admissibility Report in relation to the fact that at the time the CNM issued the non-ratification
decisions between 2001 and 2002, there was, in the legal framework, a prohibition to present
judicial and administrative appeals against CNM decisions. Therefore, the alleged victims did not
have a quick and effective remedy to question their non-ratification.
24.
Furthermore, the Commission stated that the State itself acknowledges that the
preliminary objection was filed late, since it was not alleged in the admissibility stage of the case.
It held that violations of the principle of legality were part of the debate in the admissibility stage,
as stated in the Admissibility Report. In addition, the Commission argued that the violation of the
principle of legality derives from a principal violation relating to violations of due process and “it
is not the practice of the organs of the inter-American system, because they do not meet
reasonable parameters, to demand the exhaustion of internal remedies separately and
independently against each of the effects derived from a principal violation.”
25.
Finally, the Commission requested that the preliminary objection be dismissed, taking into
account its late submission and its lack of substantive legal basis.
A.2. Considerations of the Court
26.
The Court has indicated that Article 46(1)(a) of the American Convention provides that, in
order to determine the admissibility of a petition or communication presented before the
Commission, in accordance with Articles 44 or 45 of the Convention, it is necessary to have filed
and exhausted domestic remedies, in accordance with generally recognized principles of
International Law. 17 These principles do not refer only to the formal existence of such remedies,
but also to their being adequate and effective, by virtue of the exceptions referred to in article
46(2).
27.
The Court recalls that an objection to the exercise of its jurisdiction based on the alleged
failure to exhaust domestic remedies must be presented during the admissibility stage of the case
before the Commission. 18 To this end, the State must, first, clearly specify before the Commission,
during the admissibility stage of the case, the remedies that, in its opinion, have not yet been
exhausted and demonstrate that these remedies are applicable and effective. Furthermore, the
arguments that inform the preliminary objection filed by the State before the Commission during
the admissibility stage must correspond to those put forward before the Court. 19 Following is an
examination of whether the State presented the preliminary objection of failure to exhaust
domestic remedies at the appropriate procedural moment in relation to the petitions presented by
the alleged victims.
28.
Regarding Mr. Cuya’s petition No. 320-03, in response to the Commission's communication
of July 25, 2012, in its report No. 199-2012-JUS / PPES of September 6, 2012 20, in the
admissibility stage, the State focused its allegations on the implementation of different measures
related to legislative changes and steps to reach friendly settlement agreements. In the merits
17
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary Objections. Judgment of June 26, 1987. Series C No.
1, para. 85, and Case of Martínez Esquivia v. Colombia. Preliminary Objections, Merits, and Reparations. Judgment of
October 6, 2020. Series C No. 412, para. 20.
18
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary Objections, supra, para. 88, and Case of Martínez
Esquivia v. Colombia, supra, para. 21.
19
Cf. Case of Furlan and Family v. Argentina. Preliminary Objections, Merits, Reparations and Costs. Judgment of
August 31, 2012. Series C No. 246, para. 29, and Case of Martínez Esquivia v. Colombia, supra, para. 21.
20
Cf. State Report No. 199-2012-JUS/PPES related to the petition filed by Mr. Cuya on September 6, 2012 (Merits
file, fs. 537 to 549).
10