10
suspension of the contested administrative act when filing the application for amparo
by the de facto procedure.
43.
Lastly, it indicated that the Community failed to use all the existing remedies
since it did not file an appeal against the logging concession on the grounds of
unconstitutionality, and this was filed by third parties; this did not alter the fact that
the Community had not exhausted the existing jurisdictional remedies under the
national legal system. In this respect, Nicaragua indicated that the Community’s
attitude had a negative influence on the provision of a legal remedy within a
reasonable period.
44.
Regarding its second argument, Nicaragua indicated that the Community
incurred in a series of omissions and negligent actions since it did not address a
request for the award of land titles to the competent authority, that is, the
Nicaraguan Agrarian Reform Institute (INRA), but, instead, addressed a petition to
an organ that did not have competence in the matter, the RAAN Regional Council.
Nicaragua also declared that there was no formal petition from the Community for
the award of land titles in the files of the National Demarcation Commission, the
auxiliary administrative body created to streamline the demarcation process.
45.
In its observations of September 25, 1998, the Inter-American Commission
stated that the preliminary objection filed by the State should be declared
inadmissible, since the State had acknowledged its responsibility when, in various
communications of May 1998, it indicated the way in which it was complying with the
Commission’s recommendations and when it subsequently requested a 12-month
postponement in order to provide information on the measures that it had adopted
to implement the said recommendations.
46.
The Commission also indicated that the objection that domestic remedies had
not been exhausted should be declared inadmissible, because Nicaragua had waived
this objection tacitly by not presenting it opportunely during the proceeding before
the Commission, by assuming inconsistent attitudes with regard to its legal grounds
and by failing to prove that there were effective and adequate domestic remedies
that had not been exhausted. Furthermore, the Commission stated that the legal
grounds used by the State were arguments related, in part, to the merits of the
application and not specifically to the objection filed. Therefore, the Court should not
declare the application inadmissible.
47.
With regard to the measures designed to award title to their lands, the
Commission indicated that representatives of the Community had visited INRA
officials on several occasions to this end, but the officials had told them that the
Institute was not competent to resolve a matter of communal lands.
The
Commission also stated that MARENA had informed the Community that there was a
vacuum in the pertinent administrative and legal framework. Lastly, the Commission
stated that when the Community had presented a request to the RAAN Regional
Council, the latter had received it and recognized its competence in that respect.
*
*
*
48.
The Court will proceed to examine the timing of the State’s filing of the
objection that domestic remedies had not been exhausted.