43
i)
“In the hearing on merits […] Suyapa Serrano [stated] that her mother
gave inconsistent statements. If the Court considers that what Suyapa
Serrano said and the confession in this regard are true, it cannot consider
that the Supreme Court of Justice has committed any violation of
jurisdictional protection and, much less, decide that domestic remedies have
been exhausted.” “The Supreme Court of El Salvador is being asked to
exhaust domestic remedies with facts that are untrue [...]. If the proceeding
is flawed, it cannot be expected that the result, whatever it is, would exhaust
remedies or violate jurisdictional protection.”
Arguments of the Commission
130. The Commission requested the Court to reject the preliminary objection on
failure to exhaust domestic remedies, given that the State wishes the Court to
review an issue that was decided definitively by the Commission. In this regard, the
Commission indicated that:
a)
There is an express decision on admissibility in Report No. 31/01,
issued on February 23, 2001, which examines compliance with the
Convention’s requirements for admissibility. The State’s arguments are timebarred and without grounds. Decisions adopted by the Commission, in
keeping with the powers accorded to it by the Convention, should be
considered final and non-appealable. They are not susceptible to fresh
arguments by the defendant State, which has not provided elements that
would justify a different decision by the Court. Furthermore, the Commission
reaffirms its decision on the admissibility of the instant case;
b)
Articles 46 and 47 of the American Convention establish that it is for
the Commission “to determine the admissibility of a petition.” In accordance
with the Court’s case law, the opportunity to file objections to the exhaustion
of domestic remedies is during the first stages of the proceeding before the
Commission. Also, it is presumed that the State has tacitly waived any
objection based on failure to exhaust domestic remedies, if it has not been
filed at that time;
c)
In the current evolution of the inter-American protection system, the
Court should not examine a question of admissibility that has already been
decided by the Commission with all procedural guarantees. Review by the
Court of matters of admissibility that have been decided in the proceeding
before the Commission, such as the failure to exhaust domestic remedies,
creates an imbalance between the parties and deviates from the criteria of
reasonableness established by the Court for the exercise of its full jurisdiction.
It is unnecessary to extend a repetitive task regarding matters of
admissibility, given that it has no effect on the protection of human rights, or
on the right of the alleged victims to obtain a prompt ruling from the organs
of the inter-American system;
d)
“The judicial investigation into the disappearance of the Serrano Cruz
sisters has been unsuccessful[. T]he little or no investigatory activity has
generally been a mere formality […] intended to question the identity of the
alleged victims rather than clarifying the facts and determining their fate and
their whereabouts. There has also been a completely unjustified delay: 22
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