12
adequate, appropriate and effective for the presumed victim’s purpose. She indicated that the three
constitutional judgment cited by the State in the single communication it had submitted to the
Commission at the admissibility stage referred to situations that differed from the case of I.V.
Moreover, the judgments cited did not prove that, by an application for constitutional amparo, it was
possible to reverse a decision of the Superior Court of Justice that confirmed a decision determining
the extinction of the criminal action owing to the maximum duration of the proceedings, which
favored the defendant and was due to reasons that could be attributed to the organs of justice. Added
to this, the representatives indicated, also, that I.V. was not obliged to exhaust this specific remedy
because, according to this Court’s case law, it was not necessary to exhaust all the remedies that
might exist in domestic law. The constitutional amparo was a special remedy and, therefore, did not
need to be exhausted. Consequently, the representative asked the Court to reject the objection filed
by the State on the failure to exhaust the application for constitutional amparo.
B.2
Considerations of the Court
30.
Article 46(1)(a) of the American Convention establishes that admission by the Commission of
a petition or communication lodged in accordance with Articles 44 or 45, depends on the remedies under
domestic law having been pursued and exhausted in accordance with generally recognized principles of
international law.11 The Court recalls that the rule of the prior exhaustion of domestic remedies was
conceived in the interest of the State, because it seeks to exempt the State from responding before
an international organ for acts attributed it before it has had the opportunity to rectify them with its
own means. This signifies that, not only should such remedies exist formally, but they must also be
adequate and effective, as a result of the exceptions established in Article 46(2) of the Convention.12
31.
This Court has also indicated consistently that an objection to the Court’s exercise of its
jurisdiction based on the supposed failure to exhaust domestic remedies must be filed at the proper
procedural moment; that is, during the admissibility procedure before the Commission;13 following
this, the principle of estoppel comes into play.14 When arguing the failure to exhaust domestic
remedies, the State must specify the remedies that have not yet been exhausted and prove that
these were available and adequate, appropriate and effective.15 In this regard, the Court reiterates
that it is not the task of the Court or the Commission to identify, ex officio, which domestic remedies
remained to be exhausted; thus, it is not incumbent on the international organs to rectify the lack of
precision of the State’s arguments.16 This reveals that, when the State invokes the existence of a
remedy that has not been exhausted, it must do so at the proper moment and must also clearly
identify the remedy in question and how, in the case concerned, it would be adequate and effective
to protect the person in the situation denounced.17
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections. Judgment of June 26, 1987. Series C No. 1, para.
85, and Case of Herrera Espinoza et al. v. Ecuador. Preliminary objections, merits, reparations and costs. Judgment of
September 1, 2016. Series C No. 316, para. 24.
11
Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 61, and Case
of Herrera Espinoza et al. v. Ecuador, supra, para. 24.
12
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections, supra, para. 88; Case of Herrera Ulloa v. Costa
Rica. Preliminary objections, merits, reparations and costs. Judgment of July 2, 2004. Series C No. 107, para. 81, and Case
of Herrera Espinoza et al. v. Ecuador, supra, para. 25.
13
Cf. Case of Mémoli v. Argentina. Preliminary objections, merits, reparations and costs. Judgment of August 22, 2013.
Series C No. 265, para. 47, and Case of Herrera Espinoza et al. v. Ecuador, supra, para. 25.
14
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections, supra, paras. 88 and 91, and Case of Herrera
Espinoza et al. v. Ecuador, supra, para. 25.
15
Cf. Case of Reverón Trujillo v. Venezuela. Preliminary objection, merits, reparations and costs. Judgment of June 30,
2009. Series C No. 197, para. 23, and Case of Herrera Espinoza et al. v. Ecuador, supra, para. 25.
16
Cf. Case of the Expelled Dominicans and Haitians v. Dominican Republic. Preliminary objections, merits, reparations
and costs. Judgment of August 28, 2014. Series C No. 282, para. 30, and Case of Herrera Espinoza et al. v. Ecuador, supra,
17