32.
Third, the Commission indicated that the lack of an investigation “made it impossible
to enjoy the continuous exercise” of the rights recognized in “Articles 11(1), 21 and 24 of
the American Convention, in relation to Article 1(1) thereof, to the detriment of the
members of the Río Negro community”; consequently, it considered that the Court should
examine those violations. Lastly, the Commission reiterated that the “facts on which the
violations related to the effects on the respective families are based, such as the lack of
access to information, the denial of justice, the absence of an effective investigation and the
consequent impunity,” fall within the Court’s temporal competence. Therefore, the
Commission considered that “there is no legal basis for filing the preliminary objection” and,
consequently, asked the Court to reject it.
33.
The representatives indicated that, since the State had not expressly indicated that
its allegation corresponded to a “preliminary objection” and because it should have filed it in
accordance with the requirements established in the Rules of Procedure, in their opinion the
State had implicitly waived the said defense. Nevertheless, if the Court should decide “to
examine the apparent preliminary objection,” they argued that “the act of extermination
committed against the Río Negro community is outside the temporal competence” of the
Court, as indicated by the State, but that the State failed to refer to the context in which
this assertion was made. In addition, they indicated that “the failure to comply with the
procedural obligations deriving from the obligation of guarantee is a fact that persists” and
that, in addition, “the effects of several of the violations continue to this day.” Therefore,
the representatives indicated that it was not their intention that the Court declare “the
State’s international responsibility […] for the obvious and manifest violation of the general
obligation of respect rights based on the events prior to the acceptance of the Court’s
contentious jurisdiction,” but rather for the “failure to comply with the general obligation of
guarantee.” In that regard, they argued that there is no dispute that the Court’s jurisdiction
does not extend to events that took place before March 9, 1987; thus, they considered that
the State’s objection to the Court’s temporal jurisdiction “completely lacks any basis in fact,
law or jurisprudence and, therefore, is clearly inadmissible.”
B.
Considerations of the Court
34.
First, the Court considers it pertinent to indicate that although the American
Convention and the Rules of Procedure do not develop the concept of “preliminary
objection,” in its case law, the Court has repeatedly stated that this is the mechanism to
contest the admissibility of an application or the Court’s competence to hear a particular
case or any aspect of it, based on the person, the subject matter, the time or the place.13
The purpose of a preliminary objection is to obtain a decision that prevents or impedes the
analysis of the merits of the aspect in question or the case as a whole. Therefore, in its
content and purpose, the objection must meet the essential legal criteria that grant it the
nature of a “preliminary objection.”14 On this basis, the Court finds that, even though the
State did not expressly refer to the series of arguments based on which it is contesting the
Court’s temporal competence to examine some of the human rights violations alleged in this
case as a “preliminary objection,” these arguments meet the essential legal criteria
corresponding to a preliminary objection of ratione temporis, because they are based on a
13
Cf. Case of Las Palmeras v. Colombia. Preliminary objections. Judgment of February 4, 2000. Series C No.
67, para. 34, and Case of Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil. Preliminary objections, merits,
reparations and costs. Judgment of November 24, 2010. Series C No. 219, para. 11.
14
Cf. Case of Castañeda Gutman v. Mexico. Preliminary objections, merits, reparations and costs. Judgment
of August 6, 2008. Series C No. 184, para. 39, and Case of Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil,
supra, para. 11.
15