13
47.
The Convention grants the Court full jurisdiction on all matters pertaining to a
case that it is hearing, including procedural matters on which the possibility of the
Court exercising its jurisdiction is based.3
48.
Article 46(1)(a) of the American Convention sets forth that for a petition or
communication submitted to the Inter-American Commission to be admissible
pursuant to Articles 44 or 45 of the Convention, it is necessary for domestic
remedies to have been filed and exhausted, according to generally recognized
principles of international law.
49.
The Court has asserted criteria that must be taken into account in the instant
case. First of all, the respondent State can explicitly or tacitly waive the right to
argue non-exhaustion of domestic remedies.4 Second, for it to be on time, the
objection of non-exhaustion of domestic remedies must be raised during the
admissibility stage of the proceeding before the Commission, that is, before any
consideration of the merits; if this is not the case, it will be presumed that the State
tacitly waives resorting to it.5 Third, the Court has pointed out that non-exhaustion
of remedies is a matter of pure admissibility and that the State that raises this
objection must specify the domestic remedies that must be exhausted, as well as
show that these remedies are effective.6
50.
This Court also deems that Article 46(1)(a) of the Convention states that
domestic remedies must be filed and exhausted in accordance with generally
recognized principles of International Law, which means that these remedies must
not only exist formally, but must also be appropriate and effective, as derived from
the exceptions set forth in Article 46(2) of the Convention.
51.
In the brief in which it filed the preliminary objections, replied to the
application and made comments on the pleadings and motions, the State argued that
the applications for review, the constitutional habeas corpus and the action for
damages against justices, judges, officials and employees of the courts had not been
exhausted.
52.
By not arguing non-exhaustion of applications for review, the constitutional
habeas corpus and the action for damages against justices, judges, officials and
employees of the courts during the admissibility procedure before the Inter-American
Commission, the State tacitly waived a means of defense that the American
Convention established in its favor and incurred in an implicit admission of the non-
3
See Case of Herrera Ulloa. July 2, 2004 Judgment. Series C No. 107, para. 79; Case of Juan
Humberto Sánchez. June 7, 2003 Judgment. Series C No. 99, para. 65; and Case of the 19 Tradesmen.
Preliminary Objection. June 12, 2002 Judgment. Series C No. 93, para. 27.
4
See Case of Herrera Ulloa, supra note 3, para. 81; Case of the Mayagna (Sumo) Awas Tigni
Community. Preliminary Objections. February 1, 2000 Judgment. Series C No. 66, para. 53; and Case of
Loayza Tamayo. Preliminary Objections. January 31, 1996 Judgment. Series C No. 25, para. 40.
5
See Case of Herrera Ulloa, supra note 3, para. 81; Case of the Mayagna (Sumo) Awas Tigni
Community. Preliminary Objections, supra note 4, para. 40; and Case of Castillo Petruzzi et al. Preliminary
Objections. September 4, 1998 Judgment. Series C No. 41, para. 56.
6
See Case of Herrera Ulloa, supra note 3, para. 81; Case of the Mayagna (Sumo) Awas Tigni
Community. Preliminary Objections, supra note 4, para. 53; and Case of Durand-Ugarte. Preliminary
Objections. May 28, 1999 Judgment. Series C. No. 50, para. 33.
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