State, despite having asserted the objection of failure to previously exhaust domestic remedies before the Commission, asserts this before the Court also; provided this is based on the “rule … [that this] is a defense available to the State”;34 hence, not only and exclusively with regard to whether or not domestic remedies existed at the time of the petition, but basically regarding the decision which, on that occasion, the Commission adopted. Thus, it is specifically with regard to the decision taken by the Commission on the matter that the Court has competence to rule and, unfortunately, this did not happen in the instant case, even though the State filed the corresponding objection. 5. Inadmissibility of the petition with regard to the facts relating to the pre-trial detention and the duration of the proceedings The same can be said as regards the admissibility of the petition in relation to the facts corresponding to the preventive detention and the duration of the proceedings. This was established because the Commission found that this referred to a situation that was distinct and separate from the criminal proceedings. As mentioned above, this does not correspond to the content of the petition and, thus, it was not in order to separate it from the whole and establish partial admissibility on this basis. But also and in addition, as indicated in relation to the whole petition, the said admissibility was established based on the fact “that different appeals had been filed over the period from March 24, 2006, to May 11, 2007,”35 in other words, based on domestic procedural actions that took place months and years after the petition had been lodged, so that, obviously, they could not be included or invoked as its grounds. This is precisely why the Judgment states that “in these circumstances, it cannot be understood that the requirement of prior exhaustion of domestic remedies established in Article 46(1)(a) of the American Convention has been satisfied,” and that “furthermore […] when the initial petition was forwarded to the State on February 23, 2007, the decision of May 11, 2007, that supposedly exhausted domestic remedies had not yet been issued.”36 Consequently, it declared admitted “the preliminary objection of failure to exhaust domestic remedies filed by the State is admitted as regards the facts relating to the preventive detention of Mr. Díaz Peña and the duration of the proceedings.”37 Furthermore, what is surprising is that the Judgment founded this statement also on the fact that “[m]oreover, it cannot be considered that domestic remedies had been exhausted by the requests filed by Mr. Díaz Peña’s defense counsel in the context of the criminal proceedings that were underway at the time,” because “the appropriate remedy in this regard, was to appeal the judgment delivered at the end of the proceedings,” which “Mr. Díaz Peña expressly waived the right to file,” and on the fact that the Commission had declared that “the arguments concerning the irregularities in the criminal proceedings that could have been rectified by contesting the adverse judgment were inadmissible.”38 In other words, this affirmation appears to recognize that the petition is dealt with considering the said three aspects merely because the Commission divided it up in this way and not because, in fact, these are three different matters. Moreover, the wording in the Judgment would appear to insinuate that, if the Commission had not considered the 34 Para. 114. 35 Para. 123. 36 Para. 123. 37 Para. 125. 38 Para. 124. 8