7
mentioned acts, but rather that the nature and gravity of the violations alleged must be
confronted as well as the demands and interests of justice, the particular circumstances of
the specific case, and the attitude and position of the parties.13
19.
The Court understands that the State has acknowledged the facts that constitute
alleged violations of Articles 4, 5, 7, 17, 19, and 23 of the Convention, and that in the
petition – the factual framework of this proceeding –,14 they can be found in paragraphs 37
to 79 of the same. Regarding the contested claims of law, this Tribunal considers that
according to the acknowledgement made by the State, the controversy regarding the
violation of the Articles of the Convention, in relation to Article 1(1), as well as Articles I and
II of the ICFDP, to the detriment of Florencio Chitay Nech and his children, has ceased.
Notwithstanding, in the corresponding chapters of the present Judgment, some
considerations in this respect will be made.
20.
On the other hand, the Tribunal warns that the controversy among the parties
remains regarding the facts of the alleged violation of Article 3 of the Convention, as well
as of Articles 8(1) and 25(1) of the same, in relation with Articles 1(1) and 2 of this treaty.
Likewise, the controversy persists regarding Articles 21 and 22 of the mentioned
Convention, which will be resolved by the Court in its pronouncement regarding the
preliminary objections brought forth by the State. Finally, the controversy persists
regarding the ruling of the eventual reparations, costs and expenses.
21.
The Court positively values the partial admission of facts and the acknowledgement
made by the State regarding some claims. As such, taking into account the attributions
regarding this Tribunal as an international organ of protection of human rights, it finds it
necessary to dictate a judgment in which the facts and the relevant elements of the merits
are determined, as well as the corresponding consequences, since the issuance of the
judgment contributes to the reparation for the next of kin of Florencio Chitay Nech, to
avoid that similar facts are repeated, and to satisfy, in sum, the goals of the InterAmerican jurisdiction on human rights.15
IV
PRELIMINARY OBJECTIONS
22.
In its response to the petition, the State brought forth two preliminary objections;
one relative to the lack of exhaustion of domestic remedies, and the other regarding the
“objection to reach a friendly settlement.” The Court will now analyze the origin of the
preliminary objections in the order that they were raised.
A)
Preliminary objection of lack of exhaustion of domestic remedies of the
internal jurisdiction regarding the rights contained in Articles 21 (Right to
13
Cf. Case Kimel V. Argentina. Merits, Reparations and Costs. Judgment of 2 of May of 2008. Series C No.
177,
para.
24;
Case
González
et
al.
(“Cotton
Fields”)
V.
México.
Preliminary Exception, Merits, Reparations and Costs. Judgment of 16 of November of 2009. Series C No. 205,
para. 25, and Case Radilla Pacheco V. México, supra note 12, para. 61.
14
Cf. Case Masacre of Mapiripán V. Colombia. Merits, Reparations and Costs. Judgment of 15 of September
of 2005. Series C No. 134, para. 59; Case Radilla Pacheco V. México, supra note 12, para. 62, and Case Of the Dos
Erres Massacre v. Guatemala, supra note 12, para. 222.
15
Cf. Case Masacre of Mapiripán V. Colombia. Merits, Reparations and Costs, supra note 14, para. 69; Case
Kawas Fernández V. Honduras. Merits, Reparations and Costs. Judgment of 3 of April of 2009. Series C No. 196,
para. 35, and Case Radilla Pacheco V. México, supra note 12, para. 66.