-7information on one of the points that was requested as useful evidence in the note of
October 14, 2005, which had been reiterated on three occasions (supra para. 32).
38.
On December 27, 2005, on the instructions of the President, the Secretariat
granted until January 9, 2006, to the Commission and the representatives to submit
any comments they deemed pertinent on the State’s brief of December 21, 2005,
and its attachments (supra para. 37); these were presented on January 9, 2006.
V
PRIOR CONSIDERATIONS
39.
Before recording its findings with regard to the evidence and its assessment,
determining the proven facts and deciding on the State’s responsibility in the instant
case, the Court considers it necessary to examine some statements made by the
parties concerning the preliminary objections filed by the State, the Court’s
jurisdiction, and the participation of the alleged victims’ next of kin through their
representatives.
*
40.
First, in a brief submitted on October 25, 2004, with its answer to the
application (supra para. 25), the State filed a preliminary objection in the
proceedings before the Court for alleged defects in the processing of the case before
the Commission. Specifically, the objection filed by the State was entitled “noncompliance with requirements for applying the exceptions to exhaustion of domestic
remedies in order to declare the admissibility of a petition,” based on what the State
described as two “grounds.”
41.
With regard to what it called the “first grounds” for the preliminary objection,
the State questioned the Commission’s decision, when examining the admissibility
requirements with regard to the petitions that gave rise to the case, to apply the
exceptions to the requirement of previous exhaustion of domestic remedies
established in paragraphs (a) and (c) of Article 46(2) of the Convention. The State
submitted its arguments in the form of a preliminary objection, even though it
acknowledged that “the moment at which the Court may rule on an allegation
concerning domestic remedies will depend on the specific circumstances of each
case.” In particular, the State argued that:
(a) The Commission rejected the military criminal jurisdiction as an instrument
for the administration of justice, disregarding the rule of law in force in
Colombia. The facts occurred in 1990 and, therefore, they were investigated
according to the mechanisms available for the administration of justice at that
time. Even though the Commission recognizes military criminal justice as a
component of the administration of justice in Colombia and notes the
progress made in the Constitutional Court’s case law and in the Military Penal
Code in delimiting and restricting jurisdictions, it forgot to examine the
specific case in order to indicate the applicable norms at the time of the facts;
(b) The Court has stated that the standard for measuring the effectiveness of a
domestic remedy is its capacity to produce the result for which it was
conceived. The Commission failed to examine the validity of the conclusions
of the Colombian courts and simply rejected the result, merely because it
derived from the military criminal justice system. The State does not accept
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