13
and not afterwards, that the legal proceedings, or the adversarial proceedings, are instituted as
regards the exhaustion of domestic remedies.
And, for the same reason, it is at that moment that the domestic remedies must have been
exhausted or that the petitioner indicates the impossibility of exhausting them. To affirm that
those remedies could be exhausted after the petition has been “lodged” and, consequently,
notified to the State, would affect the essential procedural balance and would leave the State
defenseless, because it could not file the pertinent preliminary objection in time and in due form.
It is in this context that the criterion “consistently affirmed [by the Court that] an objection to
the jurisdiction of the Court based on the supposed failure to exhaust domestic remedies must
be filed at the appropriate procedural opportunity; that is, during the admissibility stage of the
proceedings before the Commission” should be understood.” 38
It is also in this context that in the judgment, “(t)he Court recalls that the rule of prior exhaustion of
domestic remedies was conceived in the interests of the State, because it seeks to exempt it from
responding before an international organ for acts it is accused of before it has had the opportunity
to remedy them by its own means.” 39
Therefore, this rule is also a mechanism to encourage the State to comply with its human rights
obligations without waiting for the inter-American system to order it to do so as a result of
litigation. It also enables the State to re-establish, as soon as possible, the effective exercise of
and respect for the human rights that have been violated, which is the object and purpose of the
Convention 40 and, consequently, should happen as soon as is practicable, making the
intervention of the inter-American jurisdiction unnecessary.
Thus, its practical effect is that the State re-establish respect for human rights as soon as
possible and, to that end, it could be said that this rule has been established also and, above all,
to benefit the victim of human rights violations. 41
This means that, in situations in which it has been argued in the respective sphere of the
domestic jurisdiction that the State has not complied with its undertakings as regards respecting
and ensuring the free and full exercise of human rights, it is possible to claim the intervention
of the international jurisdictional body and not before, so that, if admissible, the State is ordered
to comply with the international obligations it has violated, to guarantee that it will not violate
them again, and to make reparation for all the consequences of such violations. 42
38
Para. 43.
39
Case of Wong Ho Wing v. Peru, cit., para. 27.
40
Art. 1(1) of the Convention: “The States Parties to this Convention undertake to respect the rights and freedoms
recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and
freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national
or social origin, economic status, birth, or any other social condition.”
41
Hereinafter the victim.
Art. 63(1) of the Convention: “If the Court finds that there has been a violation of a right or freedom protected by this
Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was
violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach
of such right or freedom be remedied and that fair compensation be paid to the injured party.”
42
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