18
of the Convention, the State would certainly have had to demonstrate the non-exhaustion of
domestic remedies and the availability, suitability, adequacy and effectiveness of such remedies,
all in accordance with the provisions of Article 34(3) of the said Rules of Procedure.
D. Those relating to the Admissibility Report
First of all, it should be noted that the Report on Admissibility and Merits was issued on July 21,
2011, that is, almost twenty years after the petition was lodged; therefore, it was not limited to
verifying compliance with the requirement of prior exhaustion of domestic remedies at the time
the petition was filed, but did so with respect to that entire period.
This obviously resulted in the present case being dealt with simultaneously by the domestic and
the international jurisdictions, with all the undesirable consequences that this entailed. In fact,
by proceeding in this manner, the Report on Admissibility and Merits assessed subsequent
actions of the State and, based on these, considered the domestic remedies to be unsuitable,
inadequate and ineffective.
Furthermore, and subsidiarily, the Commission applied, ex officio - that is, without it being
requested in the petition - the provisions of Article 46(2) of the Convention, namely, one of the
exceptions to compliance with the rule of prior exhaustion of domestic remedies.
IV.
CONSIDERATIONS ON THE JUDGMENT
The judgment states for the record that the preliminary objection referring to the failure to
comply with the rule of prior exhaustion of domestic remedies was filed at the appropriate
procedural moment and, in this regard, recalls that, in addition to the notes of 1991 and 1992,
the State alleged this objection on January 25, March 21 and May 17, 2011. 48
However, the judgment reiterates its jurisprudence to the effect that the rule of prior exhaustion
of domestic remedies must be complied with at the time the Commission rules on the
admissibility of the petition and not at the time the petition is filed or lodged, which is the position
that inspires this dissenting opinion. And so, it bases its decision not to admit the objection raised
by the State on events that occurred well after the petition was lodged with the Commission. In
this regard, it points out that “the Report on Admissibility and Merits of the Commission was
issued on July 21, 2011,” that is, after the aforementioned notes of the State; “therefore, the
present preliminary objection was filed at the proper procedural moment.”
From this perspective, the judgment focuses substantially on the State’s acknowledgement of
the facts of the case. And so, it states that “(i)n relation to the facts of the instant case, the
State acknowledged them in the terms established in the judgment of the National Criminal
Chamber of February 9, 2012 and the Final Judgment (ejecutoria suprema) of May 29, 2013,”
adding that “(i)n other words, it did not specifically admit all the facts described in the
Commission’s Report on Admissibility and Merits or in the pleadings and motions brief of the
representatives” 49 and concludes that “the acknowledgement made by the State constitutes a
partial acceptance of the facts.” 50
48
Para. 44.
49
Para. 24.
50
Para. 26.
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