12
41.
This conclusion is reflected in the Court’s case law, which has indicated that the
comprehensive terms in which the Convention is written signify that the Court exercises full
jurisdiction over all its articles and provisions.26
42.
Based on these findings, the Court rejects this preliminary objection.
D)
Failure to exhaust domestic remedies
43.
The State indicated that when the petition was submitted to the Commission on May
23, 2003, the Police Investigation was underway. From the time that Sétimo Garibaldi was
murdered until this date, around four years and five months had elapsed, which was a
reasonable period for processing the Police Investigation, bearing in mind “the complexity of
the investigation, which included, among other measures, steps taken in other cities.” When
the proceedings before the Commission began, there was no indication that the petitioners
had been unable to exhaust domestic remedies. To the contrary, if their main objective was
to obtain a comprehensive and effective investigation, in the context of the Police
Investigation that was underway, they were empowered to suggest complementary
measures and to urge the Public Prosecutor’s Office to take a different course of action, by
means of a simple petition. There is no evidence that the petitioners took advantage of this
right. The State also argued that, according to Article 18 of the Code of Criminal Procedure
and the parameters established in Directive 524 of the Federal Supreme Court, the closure
of a police investigation does not mean that a final decision has been taken, and police
investigations can be taken up again at any time should new evidence be produced;
consequently, the closure of the investigation “does not imply the impossibility of clarifying
the circumstances of the act denounced. Although the alleged victims filed a mandado de
segurança in order to re-open the investigation, this action was not considered appropriate
and was rejected by the competent judge. Lastly, “if [the alleged victims] had new evidence
concerning the facts, they were empowered, motu proprio, to file a claim; to request the reopening of the Police Investigation; to request measures and report irregularities before the
Public Prosecutor’s Office, and they did not do this.” Hence, the State concluded that all
available domestic remedies had not been exhausted.
44.
The Commission maintained that this preliminary objection was based on the State’s
disagreement with decisions taken at the opportune moment. It added that, with strict
adherence to the adversarial principle, it received the arguments of both parties, which it
duly examined and considered in light of the Convention, the case law of the inter-American
system, the evidence provided, and the characteristics of the case. In its answer to the
application, the State had not alleged that the admissibility decision had been based on
erroneous information or that it was the result of a proceeding in which the parties were
unable to act with equal weapons or that the right to defense had been violated. In this
regard, there were no grounds for re-examining the Commission’s reasoning concerning
admissibility, which was compatible with the relevant provisions of the Convention. It added
that “the facts of the case that have constituted violations of the rights to judicial
guarantees, the ineffectiveness of domestic remedies, and the reasonableness of the time
taken by the domestic proceedings vis-à-vis the complexity of the investigation are
elements that relate to the merits of the dispute.” Consequently, any discussion on the
unjustified delay and the failure of the domestic proceedings to meet the State’s obligations
under the Convention must be considered part of the merits of the case. Based on the
above, it asked the Court to reject the State’s preliminary objection as unfounded
26
Cf. Case of Velásquez Rodríguez, supra note 19, para. 29; Acevedo Buendía et al. (“Dismissed and Retired
Employees of the Comptroller’s Office”) v. Peru. Preliminary objection, merits, reparations and costs. Judgment of
July 1, 2009 Series C No. 198, para. 16, and The 19 Tradesmen v. Colombia. Preliminary objection. Judgment of
June 12, 2002. Series C No. 93, para. 27.