IV.
PRELIMINARY OBJECTION
A. Arguments of the parties and the Commission
13. The State filed a preliminary objection of non-exhaustion of domestic remedies. It
alleged that the remedies filed by the alleged victim, the Federal Extraordinary Appeal
(hereinafter also "REF") and the motion of reconsideraation, were rejected for lack of
compliance with the admissibility requirements. It stated that case law from the Supreme
Court of Justice of the Nation (hereinafter also "CSJN") enabled the judicial review of decisions
to remove judges from office through the REF, with two admissibility requirements: a) to
prove a violation of due process, and b) to exhaust the available instances at the provincial
level (in this case, before the Supreme Court of the Province of Buenos Aires - hereinafter
"SCJBA"). The State argued that Mr. Rico had not complied with the first requirement since,
according to the SCJBA and the CSJN, he had not reliably proven the violation of his right to
judicial guarantees, and had limited himself to arguing his own hypothesis regarding the facts.
It was argued that Mr. Rico only raised his discrepancy in relation to the assessment of the
evidence made by the Impeachment Jury, and with respect to the seriousness that the Jury
attributed to the facts by virtue of which his dismissal was decided.
14. The Commission found that the objection raised was inadmissible. It recalled that these
arguments had already been raised during the admissibility stage, and it had concluded that
the domestic remedies had been exhausted since the various judicial instances had the
opportunity to hear the arguments regarding alleged violations of due process and a review
of the judgment. It added that although the possibility of challenging the decisions of the
Impeachment Jury was recognized, such review only proceeded when violations of due
process were found. In addition, the accreditation of due process violations to enable judicial
review was related to the debate on the merits of the case, and such a requirement
demonstrated that the judicial protection, as required by the Convention, was illusory, lacked
simplicity and effectiveness. The representatives agreed with the Commission's position.
B. Considerations of the Court
15. With regards to the objection of failure to exhaust domestic remedies, this Court refers
to the guidelines for analyzing a preliminary objection based on an alleged failure to comply
with the requirement of exhaustion of domestic remedies.7
16. In the instant case, the State filed a preliminary objection of failure to exhaust domestic
remedies. During the processing of the case before the Commission, at the admissibility stage,
the State submitted several written observations on the initial petition and, in particular,
pointed out that the exhaustion of domestic remedies "has taken place without observing the
legal requirements that the domestic procedural rules provide for [...], circumstances that
imply that such domestic remedies have not been duly and properly exhausted".
Case of Velásquez Rodríguez v. Honduras. Preliminary Objections. Judgment of June 26, 1987. Series C No.
1, paras. 85 and 88, and Case of Amrhein et al. v. Costa Rica. Preliminary Objections, Merits, Reparations and Costs.
Judgment of April 25, 2018. Series C No. 354, para. 39. Likewise, Case of Gonzales Lluy et al. v. Ecuador. Preliminary
Objections, Merits, Reparations and Costs. Judgment of September 1, 2015. Series C No. 298, para. 28, Case of
Herzog et al. v. Brazil. Preliminary Objections, Merits, Reparations and Costs. Judgment of March 15, 2018. Series C
No. 353, para. 51, and Case of Reverón Trujillo v. Venezuela. Preliminary Objection, Merits, Reparations and Costs.
Judgment of June 30, 2009. Series C No. 197, para. 23. Similarly, see Case of Furlan and Family Members v.
Argentina. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 31, 2012. Series C No. 246,
para. 29, and Case of Favela Nova Brasília v. Brazil. Preliminary Objections, Merits, Reparations and Costs. Judgment
of February 16, 2017. Series C No. 333, para. 78.
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