B.
Considerations of the Court
13.
Article 46 of the American Convention indicates that for a petition
presented under Articles 44 or 45 of that treaty to be admitted by the
Commission, it is required, inter alia, “that the remedies under domestic law
have been pursued and exhausted in accordance with generally recognized
principles of international law.” The Court will evaluate in this case whether,
pursuant to its jurisprudence, the formal and material standards for a
preliminary objection on the grounds of a lack of exhaustion of domestic
remedies to proceed have been met. With regard to the formal standards,
with the understanding that this exception is a defense available to the State,
the Tribunal will first analyze strictly procedural questions, such as the
procedural moment in which the objection was raised (whether it was raised
in a timely fashion); the facts with regard to which it was raised; and whether
the interested party has indicated that the ruling on admissibility was based
on erroneous information or on anything else that would affect the right to
defense. With regard to the material requisites, the Court should analyze
whether domestic remedies have been sought and exhausted in keeping with
generally recognized principles of international law - in particular, whether the
State raising this objection has specified which domestic remedies have not
yet been exhausted. It will also be necessary to demonstrate that these
remedies were available, adequate, suitable, and effective. This is due to the
fact that because the admissibility of a petition before the Inter-American
System is at issue, the Court must verify that the requisites of the rule are
met as alleged, though the analysis of the formal requisites takes precedence
over that of the material requisites and, in some instances, the latter can be
related to the merits of the case.3
14.
Related with the foregoing, this Tribunal has repeatedly held in its
jurisprudence that an objection to the Court’s exercise of its jurisdiction based
on the supposed lack of exhaustion of domestic remedies must be presented
at the proper procedural moment4 - that is, during the admissibility stage of
the proceeding before the Commission.5 If it is not, the State will have lost its
opportunity to file this defense before this Tribunal. Likewise, it is up to
neither the Court nor the Commission to identify, ex officio, the domestic
remedies that must be exhausted. Rather, it is incumbent upon the State to
indicate in a timely fashion the domestic remedies that must be exhausted
and their effectiveness. Neither does it fall on the international bodies to
rectify a lack of precision in the pleadings of a State6 that, in spite of having a
3
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary Objections. Judgment of June
26, 1987. Series C No. 1, para. 91; Case of Garibaldi, para. 46, and Case of Perozo et al v.
Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of January 28, 2009.
Series C No. 195, para. 42.
4
Cf. Case of Velásquez Rodríguez V. Honduras, supra note 3, para. 88; Case of Vélez Loor
V. Panamá, supra note 3, para. 20, 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. 38.
5
Cf. Case of Herrera Ulloa V. Costa Rica. Preliminary Objections, Merits, Reparations and
Costs. Judgment of July 2, 2004. Series C No. 107, para. 81; Case of Vélez Loor V. Panamá,
supra note 3, para. 20, and Case of Gomes Lund et al. (Guerrilha do Araguaia) V. Brazil, supra
note 4, para. 38.
6
Cf. Case of Reverón Trujillo V. Venezuela. Preliminary Objection, Merits, Reparations and
Costs. Judgment of June 30, 2009. Series C No. 197, para. 23; Case of Usón Ramírez V.
7