29.
Based on the foregoing, the Court notes that the arguments supporting the
preliminary objection filed by the State before the Commission during the admissibility
stage do not correspond to those put forward before the Court. The claims presented before
the Commission relating to the failure to exhaust domestic remedies focused on the alleged
failure to file an extraordinary appeal to correct a possible arbitrariness in the judgment of
second instance of which Sebastián Furlan was the beneficiary and that established the
amount of the reparation. In other words, the purpose of filing said remedy was to modify
the amount awarded in compensation. On the other hand, the arguments presented by
Argentina before the Court relate to the failure to exhaust this judicial remedy, but this time
with a view to requesting the declaration of unconstitutionality of Law 23.982 in the specific
case, and therefore the aim was to question a law regulating the payment of the
compensation. Given that the State changed its argument regarding the purpose and aim of
the remedy that allegedly had to be exhausted, the Court deems that the claims made in
the response to the petition were not presented at the proper procedural stage before the
Commission, and therefore one of the formal requirements for a preliminary objection based
on failure to exhaust domestic remedies has not been met. 26 This renders unnecessary the
analysis of other formal and material presumptions. 27
30.
Consequently, the Court dismisses the preliminary objection regarding failure to
exhaust domestic remedies filed by the State of Argentina.
B)
Lack of jurisdiction ratione materiae of the Inter-American Court to hear
arguments regarding the consequences of the application of Law 23.982 of the
debt consolidation regimen
Arguments of the parties and the Inter-American Commission
31.
The State claimed that in the instant case “the reservation expressed by the State of
Argentina [...] regarding its non-recognition of the jurisdiction of the bodies of the InterAmerican system to intervene in matters related to [its] economic policy is applicable.” It
claimed that Law 23.982 is covered by said reservation, since it “regulates a specific regime
of debt consolidation applicable to lawsuits against the State.” It considered that the law
that “regulates the payment by means of bonds in court judgments involving the State is
part of the economic policy of the Government of the Republic of Argentina.”
32.
The State argued that although this reservation “was formulated generically in
relation to Article 21 of the Convention[, ...] an interpretation in good faith of this sovereign
decision must consider that it can be extended to other provisions of the Convention,”
otherwise this would imply that “the goal and purpose” of the aforementioned reservation
“would be invalidated.” The State claimed that the Commission's argument in its report is
“contradictory,” since it “first states that it will not perform an analysis of the method of
payment through bonds, and then it base[d] its arguments on the application of said
method.” It added that the Court has established “a flexible system of reservations that
26
Case of Vélez Loor v. Panama. Preliminary Objections, Merits, Reparations and Costs. Judgment of
November 23, 2010. Series C No. 218, para. 26, and Case of González Medina and relatives v. Dominican Republic,
para. 24.
27
Case of Vélez Loor v. Panama, para. 26, and Case of González Medina and relatives v. Dominican
Republic, para. 24.
11