file an application for amparo.” It indicated that the State “did not specify the legal basis for
that possibility nor did it explain how, through such an appeal, it was possible to eliminate
the effects of an abstract ruling of unconstitutionality […] regulated as not being subject to
appeal.” It pointed out that the State “did not provide the required evidence to explain the
reasons why the remedy of amparo could be effective.”
21.
Representative May stated that, in the proceedings before the Commission, “the
State indicated that it expressly waived the privilege of filing preliminary objections,” a
waiver that “once filed is irrevocable and irreversible.” He argued that the appropriate
domestic remedy “must be suited to the purpose”; in other words, it must satisfy the claims
and interests at stake, and since the fundamental objective of the victims is the annulment
of the judgment of the Constitutional Chamber and the reinstatement of IVF, “there is no
remedy within the domestic jurisdiction that would make it possible to achieve this
objective.” Representative Molina indicated that the State “had not proved the effectiveness
of the remedies mentioned.” Furthermore, he emphasized that “the decision of the
Constitutional Chamber is a judgment against which there is no remedy whatsoever and its
effects are erga omnes.” He argued that the appeal filed by Ileana Henchoz was rejected.
Considerations of the Court
22.
Article 46(1)(a) of the American Convention establishes that, when determining the
admissibility of a petition or communication submitted to the Inter-American Commission
under Articles 44 or 45 of the Convention, the domestic remedies must have been pursued
and exhausted, according to the generally accepted principles of international law. 27 The
Court recalls that the rule of prior exhaustion of domestic remedies is designed for the
benefit of the State, since it seeks to exempt it from the need to respond before an
international body for acts attributed to it before having had the opportunity to resolve
them through its own remedies. 28 This not only means that such remedies must formally
exist, but also that they must be adequate and effective, as contemplated in the provisions
of Article 46(2) of the Convention. 29
23.
Furthermore, this Court has consistently held that an objection to the exercise of the
Court’s jurisdiction based on the alleged failure to exhaust domestic remedies should be
presented at the proper procedural stage, 30 that is, during the admissibility proceeding
before the Commission. 31 In alleging the failure to exhaust domestic remedies, the State
must indicate, at the proper procedural moment, which remedies must be exhausted and
their effectiveness. In this regard, the Court reiterates that it is not the duty of the Court or
the Commission to identify ex officio the domestic remedies that have not been exhausted.
27
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections. Judgment of June 26, 1987. Series C
No. 1, para. 85, and Case of Furlan and family v. Argentina. Preliminary objections, merits, reparations and costs.
Judgment of August 31, 2012 Series C No. 246, para. 23..
28
Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 61,
and Case of Furlan and family v. Argentina, para. 23.
29
Cf. Case of Velásquez Rodríguez v. Honduras. Merits, para. 63, and Case of Furlan and family v.
Argentina, para. 23.
30
Case Velásquez Rodríguez v. Honduras, Preliminary objections, para. 88, and Case of Furlan and family v.
Argentina, para. 24.
31
Cf. Case of Velásquez Rodríguez v. Honduras, Preliminary objections, para. 88, and Case of Furlan and
family v. Argentina, para. 24.