represented appropriate and effective remedies, even more effective than a remedy of
amparo in the specific case – according to the case law of the Constitutional Chamber cited
above. 25 And this is, regardless of the fact that, in the specific case, when analyzing the
merits, it was possible to observe that these requests for annulment were not even
processed by the State. In addition, the arguments and consideration on this aspect should
have been interpreted by the Court pursuant to Article 29 of the American Convention,
which establishes an interpretation that is preferentially pro homine. Indeed, as InterAmerican Court has established: 26
“It must be stressed that the international protection system should be understood as a
whole, a principle established in Article 29 of the American Convention, which imposes a
framework of protection that always give preference to the interpretation or the norm that
is more favorable to the rights of the individual, the keystone for protection of the whole
inter-American system. In this regard, the adoption of a restrictive interpretation of the
scope of this Court’s competence would not only run counter to the object and purpose of
the Convention, but would also impair the practical effects of the treaty itself and the
guarantee of protection that it establishes, with negative consequences for the presumed
victim in the exercise of his right of access to justice” (underlining added).
45.
Hence, by failing to show which specific remedy was the appropriate one, or to verify
fully the State’s argument that the remedy filed was inappropriate, the preliminary objection
of failure to exhaust domestic remedies should not even have been examined.
2.1.c
Regarding the so-called “early stage” as an alleged new element in the rule of
exhaustion of domestic remedies
46.
Third, we do not consider admissible the majority
proceedings are still at an “early stage” (a new concept created
law), and that this means that it is not possible to analyze
decision may have, because decisions can be amended or
remedies or actions established in domestic law at later stages.
opinion that the criminal
in the Judgment and in case
the negative impact that a
rectified by means of the
47.
This consideration runs counter to the case law of the Inter-American Court over the
more than 26 years of its contentious jurisdiction since its first decision on the issue of
exhaustion of domestic remedies in the case of Velásquez Rodríguez v. Honduras, 27 thus
creating a disturbing precedent contrary to its own case law and the right of access to
justice in the inter-American system.
48.
Indeed, in its first contentious case, the 1987 case of Velásquez Rodríguez, the Court
found as follows:
91. The rule of prior exhaustion of domestic remedies under international human rights
law has certain implications that are present in the Convention. Under the Convention,
States Parties have the obligation to provide effective judicial remedies to victims of
human rights violations (Art. 25), remedies that must be substantiated in accordance with
the rules of due process of law (Art. 8(1)), all in keeping with the general obligation of
such States to ensure the free and full exercise of the rights recognized by the Convention
to all persons subject to their jurisdiction (Art. 1). Thus, when certain exceptions to the
25
See supra, para. 42 of this joint dissenting opinion.
26
Cf. Case of Radilla Pacheco v. Mexico. Preliminary objections, merits, reparations and costs. Judgment of
November 23, 2009. Series C No. 209, para. 24.
27
No. 1.
Case of Velásquez Rodríguez v. Honduras. Preliminary objections. Judgment of June 26, 1987. Series C
10
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