V PRELIMINARY OBJECTIONS
29. Peru raised six preliminary objections in its answering brief, 19 to wit: (i) objection on the
legality of Admissibility Report 13/04 concerning petition 136/03 for the failure to exhaust
domestic remedies; (ii) objection for failure to exhaust domestic remedies; (iii) objection
calling for a review of the legality of Report on the Merits 66/11 regarding the identification of
the alleged victims and human rights not included in Admissibility Report 13/04; (iv) objection
for inadmissibility of the representatives of the alleged victims bringing new facts into the
process before the Inter-American Court; (v) objection on the grounds that the Inter-American
Commission on Human Rights violated the Peruvian State’s right of defense; and (vi) objection
for omission of relevant material.
30. In view of the highly diverse nature of the arguments brought by the State as preliminary
objections, it should be clarified that the Court will hold as preliminary objections only those
arguments whose content and purpose are entirely or exclusively consistent with the definition
of a preliminary objection; thus, if upheld, they would fully or partially block continuation of
the procedure or a decision on the merits. The Court has repeatedly held that a preliminary
objection must address matters involving the admissibility of a case or the Court’s jurisdiction
to hear a particular case or certain of its aspects for reasons of person, matter, time or place. 20
Therefore, regardless of whether the State defines its position as a “preliminary objection,” if
these arguments cannot be considered without previously analyzing the merits of a case, they
cease to be preliminary and cannot be examined by means of a preliminary objection. 21
31.
Based on these principles, the Court will now proceed to examine the arguments in the
order introduced by the State; however, item (iv) will be discussed in the next chapter,
preliminary questions, as it more particularly addresses the corpus of facts of the case. 22
A.
First preliminary objection: “Objection on the legality of Admissibility
Report 13/04 concerning Petition 136/03 for the failure to exhaust domestic
remedies”
Arguments by the State, the Commission and the representatives
32.
The State lodged this objection on two grounds. First, it held that the admissibility
report “did not duly establish the failure to exhaust ideal, effective remedies for the purposes
of admissibility, in accordance with Article 46(1)(a) of the American Convention, the Court’s
consistent case law […] and the decisions of the [Commission itself],” such that there was no
“correct analysis” of the objections on failure to exhaust domestic remedies as given in Article
46(2) of the Convention. Second, it alleged that the report, in analyzing the effectiveness of
the remedy, had “prejudged” the merits of the matter while the case was still in the
admissibility stage.
According to Article 42(1) of the Court’s Rules of Procedure, “Preliminary objections may only be filed in the
brief indicated in the preceding Article.”
19
Cf. Case of Las Palmeras v. Colombia. Preliminary Objections. Judgment of February 4, 2000. Series C No.
67, para. 34, and Case of Human Rights Defender et al. v. Guatemala. Preliminary Objections, Merits, Reparations
and Costs. Judgment of August 28, 2014. Series C No. 283, para. 15.
20
Cf. Case of Castañeda Gutman v. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment
of August 06, 2008. Series C No. 184, para. 39, and Case of Human Rights Defender et al. v. Guatemala, supra,
para. 15.
21
Cf. Case of Mendoza et al. v. Argentina. Preliminary Objections, Merits and Reparations. Judgment of May
14, 2013. Series C No. 260, para. 25, and Case of Human Rights Defender et al. v. Guatemala, supra, para. 16.
22