20
acquiescence is a unilateral juridical act by which it accepts as legitimate a fact, a situation or a
claim with legal effects.
As for the acquiescence provided for in Article 62 of the Court’s Rules of Procedure, this is a
unilateral juridical act of the State regarding which the Court is only required to decide
“whether to accept that acquiescence, and […] rule upon its juridical effects” in the
proceedings before it. In other words, the Court can only rule on whether such act is in
accordance with the law, i.e., in this case, whether it complies with the provisions of its Rules
of Procedure, and on the obligations arising therefrom. But in order to do so, it must consider
it as it was formulated, that is, without the possibility of modifying it.
However, the judgment includes in the State’s acknowledgement a fact that it had not
contemplated therein: that, in its formulation, it waived the objection it had raised concerning
the non-exhaustion of domestic remedies by the petitioner. In addition, the judgment disregards
an essential element of this acknowledgement, namely, that it expressly excluded international
responsibility “for events that occurred and for which the aforementioned violations have been
acknowledged [,] since for [the State] the competent authorities of the domestic administration
of justice did not fail in their duty to investigate and prosecute the accused (beyond the
shortcomings alleged by the [Commission] and the representatives of the alleged victims)
related to the obligation to guarantee the aforementioned rights, and is aware of the duty to
provide reparation arising from the violations.” 54
In other words, the State’s acknowledgement did not encompass its objection regarding the
petitioner's failure to exhaust domestic remedies or the petitioner's failure to invoke one of the
exceptions provided for in Article 46(2) of the Convention to the rule of prior exhaustion of
domestic remedies, and expressly excluded any possible international responsibility insofar as it
was formulated precisely to demonstrate that it had not arisen or been incurred.
Additionally, the judgment mentions another reason to justify its decision to dismiss the
preliminary objection filed by the State. It indicates that “the Court recalls that, in order for a
preliminary objection on the non-exhaustion of domestic remedies to proceed, the State
presenting this objection must specify the domestic remedies that have not yet been exhausted,
and demonstrate that these remedies were available and were adequate, suitable and
effective.” 55
Thus, the judgment appears to overlook the fact that the obligation of the State to specify the
domestic remedies not exhausted and to demonstrate their availability, adequacy, suitability and
effectiveness only applies if the petition alleges that it has complied with the rule of prior
exhaustion of domestic remedies or that one of the exceptions to this rule set forth in Article
46(2) of the Convention applies, which does not appear to have occurred in this case. In the
case in question, the State was not required to “specify the domestic remedies that [had] not
yet been exhausted, and to demonstrate that these remedies were available and were adequate,
suitable and effective.”
On this point it should also be noted that the judgment states that “it is not a task for the Court,
or the Commission to identify ex officio the domestic remedies that remain to be exhausted” and
“emphasizes that it is not incumbent on the international organs to rectify the lack of precision
54
Para. 19.
55
Para. 46.
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