that there was a civil action for reparations and that this was separate from the criminal
proceeding, without clearly identifying the remedy or offering adequate or detailed information
on its regulation, or proving the effectiveness of any specific civil remedy to address the
violations alleged by the representatives. Therefore, it considered that the information
presented by the State before the Court was time-barred, and that, given the effects on the
lives of persons, the effective remedy would be the investigation carried out by the State ex
officio. Finally, it argued that the requirement to exhaust domestic remedies is related to facts
that are alleged to violate human rights and that the representatives' claim for reparations
arises from the declaration of the State's international responsibility, which is an automatic
derivation of such responsibility. Thus, the American Convention does not require the
exhaustion of additional mechanisms of reparation related to facts in respect of which the
relevant domestic remedies, that is, the criminal proceeding, were duly pursued.
B.2
Considerations of the Court
27.
The Court recalls that Article 46(1)(a) of the American Convention provides that, in
order to determine the admissibility of a petition or communication submitted to the
Commission in accordance with Articles 44 or 45 of the Convention, it is necessary that the
remedies under domestic law have been pursued and exhausted, in accordance with generally
recognized principles of international law,20 or that one the exceptional circumstances indicated
in Article 46(2) has been proven.
28.
This Court has specified that the appropriate procedural moment for the State to
present an objection regarding failure to exhaust domestic remedies is in the admissibility
proceeding before the Commission.21 It has also affirmed that the State presenting this
objection must specify the domestic remedies that have not yet been exhausted and
demonstrate that these remedies are suitable and effective. 22 Furthermore, the arguments that
give substance to the preliminary objection filed by the State before the Commission during
the admissibility stage must correspond to those raised before the Court.23
29.
Based on the foregoing, in this case, the Court considers it necessary to examine
whether the objection of exhaustion of domestic remedies was presented at the proper
procedural opportunity. In its brief of July 19, 2007, the State alleged failure to exhaust
domestic remedies, arguing that the criminal proceeding was following its regular course in
accordance with the Brazilian Constitution and domestic law; that the alleged victim's next of
kin had not been prevented from accessing the domestic remedies and that they could have
intervened in the criminal proceeding or brought a civil action for compensation against Mr.
Aércio Pereira de Lima.24 Thus, the Court finds that the State, in effect, presented the
preliminary objection of failure to exhaust domestic remedies at the appropriate procedural
moment, prior to the Admissibility Report of the Inter-American Commission. The Court also
finds that the State presented similar arguments in the admissibility stage before the
Commission and in the preliminary objection before the Court, and specified the remedies that,
20
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections. Judgment of June 26, 1987. Series C
No. 1, para. 85, and Case of Martínez Esquivia v. Colombia. Preliminary objections, merits and reparations. Judgment
of October 6, 2020. Series C No. 412, para. 20.
21
Cf. Velásquez Rodríguez v. Honduras. Preliminary objections, supra, para. 88, and Case of Moya Solís v.
Peru. Preliminary objections, merits, reparations and costs. Judgment of June 3, 2021. Series C No. 425, para.21.
22
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections, supra, para. 88, and Case of the
Workers of the Fireworks Factory in Santo Antônio de Jesus and their Families v. Brazil, supra, para.30.
23
Cf. Case of Furlan and Family v. Argentina. Preliminary objections, merits, reparations and costs. Judgment
of August 31, 2012 Series C No. 246, para. 29, and Case of Moya Solís v. Peru, supra, para. 21.
24
Cf. Communication sent by the State to the Inter-American Commission on July 19, 2007 (evidence file, folios
588 to 619).
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