14
but rather a discrepancy regarding the criteria with said action. Based on the
aforementioned, the Court considers that the State’s argument does not
constitute a preliminary objection.
31.
On the other hand, in regard to the lack of the procedural interest of the
Commission and the representatives due to the various initiatives adopted by
Brazil in the domestic forum, following its jurisprudence,35 this Court reiterates
that the international responsibility of the State is generated immediately after
the illicit act takes places, pursuant to international law, and that the desire to
remedy said act at a domestic level does not prevent the Commission or the
Court from knowing the case. Namely, in conformity with the Preamble of the
American Convention, the international protection of a conventional nature
“reinforces or complements the protection provided by the domestic law of the
American States.” As a consequence, when it is argued that the State did not
fully comply with the obligation to repair a violation of the rights recognized in
the American Convention, it corresponds to the Court to exercise its jurisdiction
regarding the illicit act, when and if the conventional procedural requirements are
met, such as, to eventually declare the violations that may correspond and order
the appropriate reparations pursuant to Article 63(1) of the Convention.
Therefore, the Court considers that the actions that the State indicates it has
adopted to repair the alleged violations committed in the present case or to avoid
their repetition, may be relevant for the Court’s analysis of the merits of the case
and, eventually, the possible reparations to be ordered, but they do not have an
effect on the Court’s exercise of jurisdiction to hear the case. Based on the
abovementioned, the Court dismisses the State’s preliminary objection.
C. Lack of exhaustion of domestic remedies
1. Arguments of the parties
32.
The State maintained that the Commission “refrained from properly
assessing [the] issues [regarding exhaustion of domestic remedies] while the
case was [before] it, and subsequently, when it made the decision to send it to
the Court.” It reminded that the rule on exhaustion of domestic remedies
impedes an international complaint from being filed before the alleged victim has
exhausted all the domestic remedies made available by the domestic legal system
of the allegedly responsible State. The protection provided by the international
organs has a subsidiary nature, and the purpose of an international instance is
not to revise or reform the domestic judgment, but rather to assess that said
ruling is in conformity with international regulations. Given the State’s obligations
to offer protection and effective judicial remedies, established in Articles 8 and 25
of the Convention, it corresponds to the victims to use all the domestic remedies
available before turning to the Inter-American System. Therefore, the Court
cannot disregard said norm, given that doing the contrary “would remove the
assurance that the [S]ystem functions properly, […] placing its credibility and
existence at risk.”
33.
In addition, the State noted that the representatives had not exhausted
the following domestic remedies: a) the Non-compliance Action of Fundamental
Principle No. 153, wherein it was requested that the amnesty granted by the Law
No. 6.683/79 would not extend to common crimes carried out by repression
agents against political opponents; b) the Ordinary Action No. 82.00.024682-5,
35
Cf. Case of the Gómez Paquiyauri Brothers v. Perú. Merits, Reparations, and Costs. Judgment
of July 8, 2004. Series C No. 110, para. 75; Case of Bayarri, supra note 33, para. 19, and Case of
Dacosta Cadogan v. Barbados. Preliminary Objections, Merits, Reparations, and Costs. Judgment of
September 24, 2009, Series C No. 204, para. 30.