indicated that “at no time prior to the [Merits report] did the Commission inform the State
that the petitioners had argued the exceptions established in Articles 46(2)(a) and
46(2)(b) of the Convention, so that this is a new argument in the proceedings.” Lastly, in
its final written arguments, the State indicated that, in their observations on the
preliminary objections, the Commission and the representatives “recognized expressly
that the State had indicated at the appropriate procedural moment that the effective
remedy available was the application for amparo.”
27. The State concluded that it had not tacitly waived the filing of the preliminary
objection, and “that the Commission failed to observe its own rules of procedure when it
admitted the petition lodged in this case, without evaluating [with due rigor, whether the
representatives of the [presumed] victims had filed and also exhausted the domestic
remedies.”
28. The Commission observed that the Dominican Republic was referring to a brief
presented to this Court in a proceeding other than the processing of the contentious case,
and that “the fact that, in a communication to the Court, it had indicated in general terms
that the issues raised by the State corresponded to the analysis of the contentious case
did not exempt the State from presenting the objection of failure to exhaust domestic
remedies expressly before the Commission, accompanied by the necessary information.”
During the public hearing it added that “[t]he State […] merely cited the existence of the
remedy of amparo without specifying how it could have been filed by the victims who had
actually been deported in the circumstances described.”
29. The representatives stated that, in the said brief of August 8, 2000, the State “did
not indicate the appropriate remedy that allegedly had not been exhausted, nor did it
mention whether it was available, suitable and effective”; hence, the argument was not
made appropriately and, in any case, that brief had been presented “in a different
proceeding to this one and, therefore, the argument should not be taken into account.”
They added that “the exception to the exhaustion of domestic remedies contained in
Article 46(2)(b) of the Convention […] is applicable to this case, because the [presumed]
victims were formally and physically prevented from access to the remedies under
domestic law,” as they had been expelled or deported without a court order, so that there
was no judicial decision that they could contest and, added to this, outside Dominican
territory they did not have access to an effective remedy.
A.2. Considerations of the Court
30. Article 46(1)(a) of the Convention establishes that, for a petition or communication
lodged before the Commission to be admissible, it is necessary that “the remedies under
domestic law have been pursued and exhausted in accordance with generally recognized
principles of international law.” This rule was conceived in the interests of the State to
allow it to resolve the dispute in the domestic sphere before being faced with international
proceedings. 27 This means that not only must these remedies exist formally, but they
must also be adequate and effective, 28 as a result of the exceptions established in Article
27
Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 61;
Case of Mejía Idrovo v. Ecuador. Preliminary objections, merits, reparations and costs. Judgment of July 5, 2011.
Series C No. 228, para. 27, and Case of Liakat Ali Alibux v. Suriname. Preliminary objections, merits, reparations
and costs. Judgment of May 19, 2014. Series C No. 277, para. 15.
28
This means, on the one hand, that the function of the remedy in question, “within the domestic legal
system, must be appropriate to protect the juridical situation infringed. Numerous remedies exist under every
domestic legal system, but they are not all applicable in every circumstance. If, in a specific case, the remedy is
not appropriate, it is evident that it is not necessary to exhaust it.” “Furthermore, a remedy must be effective; in
other words, it must be able to produce the result for which it was conceived.” Cf. Case of Velásquez Rodríguez v.
14