10
alleged, issue that must not be analyzed as a preliminary matter but when assessing
the merits of the controversy.
26.
Therefore, the Tribunal understands that the State's right to defense has not
been affected and thus finds no reason to depart from the prior decision made in the
proceeding before the Commission. Consequently, the State’s lack of specificity in a
timely procedural manner before the Commission regarding the domestic remedies
that allegedly had not been exhausted, as well as the lack of reasoning put forth
concerning their availability, suitability, and effectiveness, make the argument
presented before this Court time-barred.
27.
Lastly, it is worth emphasizing that the State made a partial acknowledgment
of international responsibility (infra Chapter VI), in which it specified and admitted
that Mr. Vélez Loor was not notified of the content of Order 7306 of December 6,
2002, and that the process by which he was sentenced to two years’ imprisonment
was conducted without any guarantee of the right to defense. In this respect, the
Tribunal deems that the filing of the preliminary objection of non-exhaustion of
domestic remedies in the present case is incompatible with said acknowledgment,18
with the understanding that the notice of said decision constituted a requisite for the
filing of some of the remedies mentioned by the State in its response19 and that the
lack of guarantee of due process of law to pursue the remedies constitutes an
enabling factor of the jurisdiction of the international system of protection.
28.
Therefore, in virtue of these reasons, the Court dismisses the first preliminary
objection raised by the State.
2.
Lack of jurisdiction ratione materiae of the Court over an alleged
breach of the Inter-American Convention to Prevent and Punish
Torture
a) Arguments of the Parties
i.
Arguments of the State
29.
The State requested that the inadmissibility of the application submitted by the
Commission be declared, in view of the “lack of the Court’s competence […] to hear
the alleged non-compliance with the obligation to investigate established in the
[Convention against Torture], based on the content of Articles 33 and 62 of the
American Convention on Human Rights, which expressly limit the Court's jurisdiction
to the interpretation or application of the [latter].” In this respect, the State alleged
that “it cannot be assumed that the acceptance of the jurisdiction of the American
Convention by the Panamanian State […] could be applied to [confer] jurisdiction
upon the Court regarding the application and interpretation of the Convention
[against Torture], without considering that such assumption constitutes an act
contrary to the principle of consent.” In the same manner, it pointed out that this
Tribunal is not competent to hear violations of the obligations contained in the
Convention against Torture in the present case given that the State, apart from giving
its consent to be bound to such treaty, must expressly state and accept the
competence of the Inter-American Court to apply and interpret its content. Finally,
the State argued that the Court has limited jurisdiction over international treaties
18
Cf. Case of the “Mapiripan Massacre” v. Colombia. Preliminary Objections. Judgment of March 7,
2005 Series C No. 122, para. 30, and Case of the Ituango Massacre v. Colombia. Preliminary Objections,
Merits, Reparations, and Costs. Judgment of July 1, 2006 Series C No. 148, para. 104.
19
In fact, the State pointed out that even though “[t]he resolution by which it was ordered the
deportation of Mr. Vélez Loor was subject to the request for reconsideration and appeal before the Ministry
of Interior and Justice, the National Office of Immigration and Naturalization failed to formally notified the
content of the Resolution, therefore it is possible to infer that the petitioner was not, at the moment of the
implementation of the resolution, reported of the remedies or in a position to file said remedies”.