Commission and the Court, the State had failed to comply with its obligation to specify
the remedies to be exhausted and to prove that they were appropriate and effective,
and (iii) considering that numerous actions had been taken that had failed to provide
an answer, and agreements had been signed that had not been implemented, the
Commission considered that, as decided in its Admissibility Report, the exception
established in Article 46(2)(a) of the Convention that “the domestic legislation of the
State concerned does not afford due process of law for the protection of the rights that
have allegedly been violated” was applicable in this case.
24.
The representatives indicated their understanding that the failure to exhaust
domestic remedies was the only preliminary objection filed by the State. They
indicated that the State had contradicted itself by arguing that domestic remedies had
not been exhausted because, in the section on the right to judicial protection in its
answering brief, it had acknowledged the actions taken by the community before the
National Agrarian Institute and the Public Prosecution Service. They also pointed out
that the State had failed to indicate the suitable and effective remedies that were
available to resolve the case at the domestic level. Finally, they argued that there was
no adequate domestic legislation to protect and defend the rights of indigenous
peoples.
B. Considerations of the Court
25.
In this chapter, the Court will analyze the two preliminary objections filed by
the State in its answering brief that relate to: (1) the failure to exhaust domestic
remedies to free the territory of the Punta Piedra community of encumbrances, and (2)
the failure to exhaust domestic remedies in connection with the death of Félix Ordoñez
Suazo.
26.
Article 46(1)(a) of the Convention establishes that admission by the
Commission of a petition lodged in accordance with Articles 44 or 45 of the Convention
is subject to the requirement that the remedies under domestic law have been pursued
and exhausted in accordance with generally recognized principles of international
law. 13 However, this supposes that such remedies must exist formally and also that
they must be adequate and effective owing to the exceptions set out in Article 46(2) of
the Convention. 14
27.
The Court recalls that the rule of prior exhaustion of domestic remedies was
conceived in the State’s interests, because it seeks to exempt it from responding
before an international organ for acts that are attributed to it before having had the
chance to rectify them by its own means. 15 However, for a preliminary objection of
failure to exhaust domestic remedies to be admissible, the State must not only specify
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections. Judgment of June 26, 1987. Series C
No. 1, para. 85, and Case of Gonzales Lluy et al. v. Ecuador. Preliminary objections, merits, reparations and
costs. Judgment of September 1, 2015. Series C No. 298, para. 27.
14
Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 63;
and Case of Expelled Dominicans and Haitians v. Dominican Republic. Preliminary objections, merits,
reparations and costs. Judgment of August 28, 2014. Series C N. 282, para. 30.
15
Cf. Case of Velásquez Rodríguez, Merits, supra, para. 61, and Case of Argüelles et al. v. Argentina.
Preliminary objections, merits, reparations and costs. Judgment of November 20, 2014. Series C No. 288,
para. 43.
13
11