6
"does not constitute preliminary objections and should not be admitted as such."
b.
Citing the Judgment of the Court on preliminary objections in the Blake case,
it claimed that the State's arguments -to the effect that the domestic rulings meet
the requirements of the Convention, which it is not contravened by the negative
result of the proceeding- cannot be considered to be a preliminary objection; that,
on the contrary, it is an important pleading of substance which should be examined
together with the merits of the Case. With reference to the State's arguments on the
obligations established in the OAS Charter to respect the independence of the
Judiciary, and that the Court may not therefore tamper with its rulings, the
Commission pointed out that "the mere fact that the matter has [already] been
processed and decided in the national courts [does not] ousts the jurisdiction of the
supervisory organs of the system, [this being] an erroneous interpretation of the
objectives and procedures of the system."
c.
As regards the State's arguments that the Court lacks jurisdictional powers to
hear this case because it implies the creation of a "fourth instance" of jurisdictional
review, the Commission maintained that these arguments were not raised in limine
litis before it and that, consequently, the objection must not be allowed to be raised
at this advanced stage of the proceedings. Moreover, the Commission pointed out
that the State never challenged the jurisdiction of the Commission.
d.
The Commission pointed out that it was neither seeking the application of the
State's domestic law to the facts of the instant Case, nor had it made such a request
of the Court; its aim was for the Court to "evaluate, in the light of the Convention,
the acts of kidnapping, torture, and murder, the deficiencies of the response to those
acts, and the resulting impunity."
e.
The Commission declared, however, that should the Court decide to take
account of the State's substantive arguments, it considers that it has clearly
demonstrated in its application that the State has violated the American Convention
with regard to the kidnapping, torture, and murder of street children and that justice
has been denied in the pertinent domestic proceedings. Although the domestic courts
had the opportunity to resolve, rectify and repair these violations, the Commission
considered that it had proven that this had not been done. It declared that the
investigation and the internal judicial process conducted in this Case "were so
deficient as to deny the victims' families due process and justice."
f.
The Commission requested that the Court "[r]eject the preliminary objection
raised by the State of Guatemala" and that it "examine the merits of the case."
V
17.
The only preliminary objection of any substance brought by Guatemala is essentially
that alleging this Court's lack of jurisdiction to examine as a "fourth instance" the judgment
rendered by that country's Supreme Court of Justice on July 21, 1993, which upheld the
ruling of the Second District Court's Penal Branch of the State of Guatemala of December
26, 1991, acquitting the accused of the murder of the victims indicated by the Commission,
with a decision at the highest judicial level, which acquired the authority of a final
judgment.