State before the Commission during the admissibility stage must correspond to those made
before the Court. However, in this case, the State's arguments to the effect that the extraordinary
appeal for review had not been filed before the Constitutional Court, and that for this reason
domestic remedies had not been exhausted, were not presented at the appropriate procedural
moment, that is, during the admissibility stage of the case. Indeed, the Court notes that the State
raised for the first time the failure to exhaust domestic remedies in a communication sent on
October 13, 2017 to the Inter-American Commission on Human Rights, to which it attached a
communication dated August 17, 2017 signed by the Public Prosecutor of the Judiciary, which
indicates that the presumed victim had not exhausted all the instances provided by law. This
communication was received after the issuance of Admissibility Report No. 37/16 of August 12,
2016 (supra para. 2(b)). For this reason, the Court considers that the preliminary objection raised
by the State is inadmissible.
22. Additionally, the State requested monitoring of the legality of the actions of the InterAmerican Commission in relation to the lack of exhaustion of domestic remedies, within the
normative framework applied. The Court recalls that, in matters it oversees, it has the power to
monitor the legality of the Commission's actions. However, this does not necessarily imply an ex
officio review of the procedure that was carried out in that instance. In addition, the Court must
maintain a fair balance between the protection of human rights, the ultimate goal of the InterAmerican System, and the legal security and procedural fairness that ensure the stability and
reliability of international protection. The aforementioned control may proceed, then, in those
cases in which one of the parties alleges that there is a serious error that violates their right of
defense, in which case they must effectively demonstrate such damage. A complaint or
discrepancy of criteria in relation to the actions of the Inter-American Commission is not
sufficient.7
23. In this case, the State indicated that, because the allegations referring to the regulatory
framework and the violation of the principle of legality were not presented by the presumed victim
or included in the Admissibility Report, it did not have the opportunity to raise the preliminary
objection for failure to exhaust domestic remedies in relation to this matter at the appropriate
procedural moment. In this regard, the Court finds that the litigation in this case has, from the
beginning, been related to the process that gave rise to the presumed victim's non-ratification in
office, and this necessarily includes the regulatory framework applied. Furthermore, this
regulatory framework was identified by the presumed victim in her initial petition.8 Thus, the State
has been aware of the subject of the dispute since then and could have presented arguments on
this point or a preliminary objection at the appropriate procedural moment. Additionally, it should
be noted that, among the requirements to file a complaint with the Commission, there is no
provision that the petitioner identify the regulatory framework or make a specific reference to the
articles of the Convention that are allegedly violated.
7
Cf. Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 28, 2007.
Series C No. 172, para. 32, and Case of Urrutia Laubreaux v. Chile. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 27,
2020. Series C No. 409, para. 25.
8
The initial petition of the alleged victim states: “I DENOUNCE the Peruvian State, for violation of the stated Convention and for
having violated the main rights of the Peruvian constitutional guarantee to the detriment of the undersigned, on the grounds of fact and law
that I state: [… ] 2. - Through Laws No. 23344 dated December 19, 1981 and 23369 dated December 31, 1981, legislation was passed on the
appointments of Court Clerks and the ratification of the Court magistrates, secretaries and reporters of the Court, respectively. In order to fulfill
these mandates, by Supreme Decree No. 003-82 JUS, dated January 13, 1982, a Commission of members was appointed to proceed with the
ratification of the Clerks of the Courts. Thus, after the review of the files under my charge and the evaluation carried out by the Ratification
Commission, the President of the Court informed me on September 13, 1982, that I had not been ratified in the position of Judicial Secretary,
preventing me from entering my workplace without foundation [...] ”. Initial petition filed by Mrs. Norka Moya Solís before the Inter-American
Commission on Human Rights, March 21, 2000 (evidence file, folios 314 to 315)
7