6
petition, at which time the High Court of Justice had already issued a final judgment in the
criminal proceedings against Mr. Alibux. In turn, it noted that the amendment to the IPOHA
was approved more than five months after the adoption of the Admissibility Report in the
case and almost four years after the final judgment of the High Court of Justice.
Furthermore, it recognized that even when certain aspects of the case evolve with the
passage of time, the Court should focus its attention on Mr. Alibux’s situation at the time
the alleged violations of human rights occurred. Lastly, regarding the restriction of the right
to leave the country, the Commission argued that the preliminary objection filed by the
State was not brought forth at the admissibility stage of the petition, but rather, it was
raised for the first time during the proceedings before the Court. In this regard, it
considered that, pursuant to the principle of estoppel, the State had the opportunity to
challenge the admissibility of the point at issue, and in not doing so, the preliminary
objection must be rejected.
13. The alleged victim stated that at the moment his petition was submitted to the
Commission, the process had reached a “dead end” given that there was no legally valid
resolution as to whether or not the criminal proceedings against him would continue, and, in
addition, the proceedings had been unjustifiably delayed in regard to the issuance of the
judgment. Moreover, he noted that it was a “travesty” in the name of justice that the State
had amended the law more than three years after the High Court of Justice had handed
down the conviction. Finally, the alleged victim did not specifically address the lack of
exhaustion of domestic remedies in regard to the restriction of the right to leave the
country.
B.
Considerations of the Court
14. Article 46(1)(a) of the American Convention establishes that, in order to determine the
admissibility of a petition or communication lodged before the Inter-American Commission in
accordance with Articles 44 or 45 of the Convention, the remedies under domestic law must
have been pursued and exhausted in accordance with generally recognized principles of
international law.6 In this sense, the Court has held that an objection to its exercise of
jurisdiction based on the supposed failure to exhaust domestic remedies must be filed at the
appropriate procedural moment,7 that is, during admissibility proceedings before the
Commission.8
15. The rule of prior exhaustion of domestic remedies is established in the interest of the
State, as it seeks to exempt the latter from responding before an international body for acts
that are attributed to it, before it has had the opportunity to remedy them by its own
means.9 However, in order for a preliminary objection regarding the lack of exhaustion of
domestic remedies to proceed, the State raising the objection must specify the domestic
6
Cf. Case of Velásquez Rodríguez V. Honduras. Preliminary Objections. Judgment of June 26, 1987. Series C
No. 1, para. 85, and Case of Mémoli V. Argentina. Preliminary Objections, Merits, Reparations and Costs. Judgment
of August 22, 2013. Series C No. 265, para. 46.
7
47.
Cf. Case of Velásquez Rodríguez. Preliminary Objections, supra, para. 88, and Case of Mémoli, supra, para.
8
Cf. Case of Velásquez Rodríguez. Preliminary Objections, supra, paras. 88 and 89, and Case of Mémoli,
supra, para. 47.
9
Cf. Case of Velásquez Rodríguez V. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 61,
and Case of The Santo Domingo Massacre V. Colombia. Preliminary Objections, Merits and Reparaciones. Judgment
of November 30, 2012. Series C No. 259, para. 33.