16
the case is analyzed and established, the principle of preclusion is applied, except
in extraordinary situations where there is a serious error that affects the right to
defense of the parties. In the present case, the State did not identify a serious
error in the proceedings before the Commission, nor did it demonstrate any
detriment to its right to defense. In the six years that elapsed wherein the case
remained in the admissibility stage, the State had several opportunities to
respond to the arguments of the representatives and to the concerns of the
Commission, reason for which there is no basis to reexamine the decision of the
Commission in its admissibility report. In addition, the representatives reminded
that the State should present the objection on the non-exhaustion of domestic
remedies before the Inter-American Commission rules on the admissibility of the
case. Prior to the issuance of the Admissibility Report No. 33/01, the State only
argued the non-exhaustion of two domestic remedies: a) the Ordinary Action, in
which, according to Brazil, the objection of undue delay should not be applied,
and b) the habeas data action, that had not been filed. Notwithstanding, in the
processing before the Court, the State reiterated the relevant arguments
regarding the abovementioned Ordinary Action, and in addition, other legal
actions related to the facts complained of in the present case, such as the Noncompliance Action No. 153, the Public Civil Suit, and other measures which were
or could be adopted in order to fulfill the requested measures of reparation. For
the representatives, the State did not argue a lack of exhaustion of the
mentioned remedies at the opportune procedural moment, and as such, this
preliminary objection should be considered time-barred and not admitted by the
Court.
37.
In a secondary manner, the representatives noted the ineffectiveness of
the domestic remedies addressed by the State. In regard to the Ordinary Action,
they argued that twenty-seven years have passed since the action initiated and
despite the final decision, “it did not result in the awaited effects, and did not
constitute, therefore[,] an effective remedy for the clarification of the facts of the
complaint.” They noted that the appropriate measure of reparation to remedy the
alleged violations was via a criminal remedy. Nevertheless, given that it pertained
to a case of enforced disappearance, due to the Amnesty Law, the State did not
initiate an investigation designed to ascertain the facts, identify those
responsible, and guarantee justice, which was not denied by the State. The
interpretation in force of the Amnesty Law had a direct effect on the omissions of
the Public Prosecutor’s Office regarding the facts of the present case and inhibited
the next of kin from filing a complaint in order to initiate a proceeding to establish
the corresponding criminal action. Lastly, the representatives noted that, contrary
to that specified in the jurisprudence of the Court, Brazil identified other
remedies, but did not demonstrate the availability or effectiveness of said
remedies in repairing the alleged violations in the case, such as the Noncompliance Action No. 153 or the Public Civil Suit, which was presented after the
issuance of the admissibility analysis emitted by the Commission.
2. The Court’s considerations
38.
The Court has established in a consistent manner that an objection to the
exercise of jurisdiction of the Court based on the non-exhaustion of domestic
remedies should be presented at the appropriate procedural moment,37 namely,
in the admissibility stage of the proceedings before the Commission.38 In this
37
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary Objections. Judgment of June 26,
1987. Series C No. 1, para. 88; Case of Da Costa Cadogan, supra note 35, para. 18, and Case of Usón
Ramírez v. Venezuela. Preliminary Objection, Merits, Reparations, and Costs. Judgment of November
20, 2009. Series C No. 207, para. 19.