11
stated that the remedies had not been exhausted, and then tried to justify the delay in the
remedies filed, which […] had exceeded a reasonable time.”
B.2. Considerations of the Court
27.
Article 46(1)(a) of the American Convention establishes that “[a]dmission by the
Commission of a petition or communication lodged in accordance with Articles 44 or 45 shall be
subject to […] the remedies under domestic law hav[ing] been pursued and exhausted in
accordance with generally recognized principles of international law.”15 This supposes not only
that such remedies should formally exist, but also that they should be adequate and effective, as
a result of the exceptions established in Article 46(2) of the Convention.16
28.
In this regard the Court has indicated in its consistent case law that an objection to the
exercise of its jurisdiction based on the supposed failure to exhaust domestic remedies must be
presented at the proper procedural moment;17 that is, during the admissibility procedure before
the Commission.18 This interpretation that the Court has made of Article 46(1)(a) of the
Convention for more than two decades is in accordance with international law,19 and signifies
that following this procedural opportunity, the principle of estoppel operates.
29.
The rule of prior exhaustion of domestic remedies is conceived in the interest of the State,
because it seeks to exempt the State from responding before an international organ for acts
attributed to it, before it has had the opportunity to remedy them by its own means.20 However,
for a preliminary objection of failure to exhaust domestic remedies to be admissible, the State
filing this objection must specify the domestic remedies that have not been exhausted and
demonstrate that they were available and adequate, appropriate and effective.21 Accordingly, it
is not the task of the Court or the Commission to identify ex officio the domestic remedies that
remain to be exhausted. The Court emphasizes that it is not incumbent on the international
organs to rectify a lack of precision in the State’s arguments.22
30.
In this case, the initial petition was lodged before the Commission on February 18, 2010,
and forwarded to the State on March 11, 2011,23 at which time the Inter-American Commission
granted it two months to forward its observations corresponding to the admissibility stage of the
petition. However, the State did not send the observations requested, and did not comment on
the petition’s admissibility. Therefore, the Admissibility Report was adopted on July 22, 2011.
Then, on December 4, 2011, the State presented its “observations on the merits” and referred
to the failure to exhaust domestic remedies, stating that “although the Venezuelan State did not
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections. Judgment of June 26, 1987. Series C No. 1, para.
85, and Case of Cruz Sánchez v. Peru. Preliminary objections, merits, reparations and costs Judgment of April 17, 2015.
Series C No. 292 para. 48.
15
Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 63, and Case of
Cruz Sánchez v. Peru, para. 48.
16
17
49.
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections, para. 88, and Case of Cruz Sánchez v. Peru, para.
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections, paras. 88 and 89, and Case of Cruz Sánchez v.
Peru, para. 49.
18
Cf. Case of Reverón Trujillo v. Venezuela. Preliminary objection, merits, reparations and costs. Judgment of June 30,
2009. Series C No. 197, para. 22, and Case of the Human Rights Defender et al. v. Guatemala. Preliminary objections, merits,
reparations and costs Judgment of August 28, 2014. Series C No. 283, para. 20.
19
20
Cf. Case of Velásquez Rodríguez v. Honduras. Merits, para. 61, and Case of Cruz Sánchez v. Peru, para. 48.
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections, paras. 88 and 91, and Case of Cruz Sánchez v.
Peru, para. 49.
21
22
Cf. Case of Reverón Trujillo v. Venezuela, para. 23, and Case of Cruz Sánchez v. Peru, para. 49.
23
Cf. Communication of the Inter-American Commission of July 26, 2006 (evidence file, folio 1945).