8
32.
The third objection has been stated by Nicaragua in generic terms as "procedural errors by
the Commission in the handling of the case and in the complaint." The Government mentions four
"errors" in its objection, which the Court shall analyze separately below.
33.
In the first point of this objection the Government alleges that the Commission "did not
refuse to admit the application or communication in spite of the fact that there was full proof that
the criminal investigation and prosecution were proceeding normally in accordance with the
legislation in force in Nicaragua."
34.
The Commission affirms that its practice has been to consider the admissibility of an
application together with the merits of the complaint and that, in the instant case, its decision
with respect to admissibility falls within the legal boundaries allowed it by the Convention and its
Rules of Procedures. The Commission felt that the information it received from the petitioner was
sufficient at the time to establish its competency.
35.
In pointing out this "error," the Government does not refer to any article applicable to the
circumstance that it mentions; nor does it support its objection in any other way. If the allegation
of the Government refers to the exhaustion of remedies, the Court has already previously decided
to join that objection to the merits. If instead, it refers to the admissibility, whether because an
express declaration was not made or because a declaration was made implicitly together with the
merits, the Court reiterates what it has already expressed on another occasion by stating that
the Commission's failure to make an express declaration on the question of admissibility of the instant
case is not a valid basis for concluding that such failure barred proper consideration by the Commission,
and subsequently, by the Court (Arts. 46-51 and 61(2) of the Convention). (Velásquez Rodríguez Case,
Preliminary Objections, supra 30, para. 41; Fairén Garbi and Solís Corrales Case, Preliminary Objections,
supra 30, para. 46, and Godínez Cruz Case, Preliminary Objections, supra 30, para. 44.)
36.
It is true that if "the admission of a petition does not require an express and formal act,
such an act is necessary if it is found to be inadmissible." (Velásquez Rodríguez Case, Preliminary
Objections, supra 30, para. 40; Fairén Garbi and Solís Corrales Case, Preliminary Objections,
supra 30, para. 45, and Godínez Cruz Case, Preliminary Objections, supra 30, para. 43.) The
Convention not only determines what requirements a petition or communication must meet in
order to be admitted by the Commission (Art. 46) but also determines cases of inadmissibility
(Art. 47). The Government's arguments seem to indicate that it understands this principle, since it
states "there was full proof that the criminal investigation and prosecution were proceeding
normally," and the petition before the Commission was "manifestly groundless" or totally
inapplicable under the terms of Article 47(c) ("The Commission shall consider inadmissible any
petition or communication submitted under Articles 44 or 45 if: . . . c) the statements of the
petitioner or of the state indicate that the petition or communication is manifestly groundless or
obviously out of order"). Nevertheless, the subjects of the investigation and the criminal
proceedings are part of the merits, whereby it becomes evident that, for the Commission, it was
neither "obvious" nor "manifest" that there were arguments to declare the case inadmissible. The
terms of Article 47(c) exclude any conclusion based on appearance and demand a "clear, manifest
certainty so perceptible that nobody may rationally place it in doubt" (Royal Spanish Academy,
Dictionary of the Spanish Language), which is not the case here.
37.
On the second point of the third preliminary objection, the Government maintains that the
Commission, in determining that "[b]ecause of the very nature of the events, this case [was] not
susceptible to a friendly settlement," restricted the scope of this rule of the Convention (Art.
48(1)(f)) which does not distinguish between matters which are susceptible to a friendly
settlement and those which are not. Based on the Court's decision in the judgment on the
preliminary objections in the Caballero Delgado and Santana Case (Caballero Delgado and