18.
The representatives asked that the preliminary objection be declared
inadmissible because the State “did not […] raise the objection” to the alleged
failure to exhaust remedies “at the appropriate time” during the proceedings before
the Inter-American Commission. They also indicated that Mrs. Chocrón Chocrón
“exercised and exhausted all the ordinary domestic mechanisms and proceedings”
by filing an appeal for reconsideration before the Judicial Commission and an
administrative appeal for annulment before the Political and Administrative
Chamber of the Supreme Court of Justice. They argued that “the inappropriatelynamed ‘special appeal for review’ referred to by the Venezuelan State is not an
ordinary remedy (and not even a special remedy), but rather a discretionary power
of the Constitutional Chamber intended to standardize criteria for constitutional
interpretation.” Thus, the remedy is “not an instrument that establishes a new
ordinary instance where the individual has the right to air his or her personal
interests; in other words, it is not an ordinary means of appeal.” In this regard,
they indicated that, “[t]he case law of the Constitutional Chamber has always
denied that this revisionary power can be used for appeals.”
19.
Additionally, the representatives indicated that “the power to review final
judgments, established in paragraph 10 of Article 336 of the Constitution, can be
exercised ex officio by the Constitutional Chamber itself if it considers, at its own
discretion, that its precedents have been ignored. This reveals that, if it did not
exercise this power in the case of [Mrs. Chocrón Chocrón], it was because there
was no reason to do so; in other words, it was inadmissible.” Furthermore,
according to the representatives, “from January 1, 2004, to April 30, 2008, it can
be verified that more than 80% of the requests for special review of final judgments
were declared INADMISSIBLE” by the Constitutional Chamber.
2. Considerations of the Court
20.
The Court notes that there is no dispute between the parties as regards the
fact that this preliminary objection was not raised during the proceedings before the
Commission. Thus, in keeping with its observations in the case of Reverón Trujillo
v. Venezuela, the Court notes that the State is seeking that the Court modify its
consistent case law which holds that, if the objection of failure to exhaust domestic
remedies is not raised at the appropriate time, the possibility of raising it is lost.12
21.
Although the supervision by the Inter-American Court is subsidiary,
additional and complementary,13 the Convention itself establishes that the rule of
exhaustion of domestic remedies must be interpreted in keeping with generallyrecognized principles of international law, which include the principle establishing
that the use of this rule is a defense available to the State and, therefore, the
procedural moment at which the objection has been submitted must be verified. If
the objection is not presented during the admissibility proceedings before the
Commission, the State will have forfeited the possibility of using this means of
defense before this Court. As indicated in the case of Reverón Trujillo, this has been
12
Cf. Case of Reverón Trujillo v. Venezuela. Preliminary objection, merits, reparations and costs.
Judgment of June 30, 2009. Series C No. 197, para. 20.
13
Cf. Preamble and Article 46 of the American Convention on Human Rights. See also: The Effect
of Reservations on the Entry into Force of the American Convention on Human Rights (Arts. 74 and 75).
Advisory Opinion OC-2/82 of September 24, 1982. Series A No. 2, para. 31; Case of Velásquez
Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 61; Case of Perozo et
al. v. Venezuela. Preliminary objections, merits, reparations and costs. Judgment of January 28, 2009.
Series C No. 195, para. 64, and Case of Cabrera García and Montiel Flores v. Mexico. Preliminary
objection, merits, reparations and costs. Judgment of November 26, 2010. Series C No 220, para. 10.
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