21
number nor names of the individuals listed in these two documents coincide. The
Court also notes that the persons alleged by the representatives in their requests
and arguments brief are totally different from those indicated in the said Article 50
report (supra paras. 11 and 18).
98.
This Court has had to make a laborious examination of the evidence provided
by the parties in order to extract the elements required to make a precise
identification of the victims, since the Commission’s application did not include
complete information in this regard. The Court observes that the Commission’s
application contained general references to the victims in relation to some groups of
them, such as “17 herdsmen” or “victims of displacement,” without providing the
necessary details for the appropriate identification of individual alleged victims. The
Court considers that, in accordance with Article 33(1) of the Rules of Procedure of
the Court, it corresponds to the Commission, and not to the Court, to identify
precisely the alleged victims in a case before the Court.
VI
PRELIMINARY OBJECTION
99.
In the brief answering the application (supra para. 19), the State filed a
preliminary objection based on the “undue application of the requirement of prior
exhaustion of domestic remedies” established in Article 46(1)(a) of the Convention.
The State’s arguments
100.
Regarding this preliminary objection, the State indicated that:
(a)
The inter-American system of protection and respect for human rights
is of a “subsidiary [nature] to the mechanisms that the States themselves
have established to ensure the respect and guarantee of rights and freedoms
in the domestic sphere”;
(b)
“Opportunely, repeatedly and coherently, the State opposed the
admission […] of these cases, because it considered that domestic remedies
had not been exhausted”;
(c)
The Commission drafted a joint report on the La Granja and El Aro
cases, with its respective conclusions and recommendations, “before domestic
remedies had been exhausted and in the absence of an unjustified delay in
the decisions”;
(d)
“Some of the next of kin of the alleged victims who have become
parties to the international proceedings never made use of the mechanisms
established in domestic law to seek compensation for the damage they allege
they have suffered [, such as an] autonomous civil proceedings or one filed
within the criminal proceedings, or [an] administrative action for direct
reparation”;
(e)
Since the burden of proof falls on the Commission regarding the facts
on which the application is based, “there does not appear to be any evidence
at all [in the application] that domestic remedies have been exhausted or that
there has been an unjustified delay in the decisions [...]. Moreover, there is
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