III PRELIMINARY OBJECTION OF “FAILURE TO EXHAUST DOMESTIC REMEDIES” 1. Arguments of the parties 15. The State indicated that the Commission “has tried to establish jurisdictional exclusivity for the analysis of the exhaustion of domestic remedies, as well as preclusion in its arguments before the inter-American system.” It affirmed that “to that end, it has attempted to ignore the intrinsic nature of the requirement of exhaustion of domestic remedies, equating it to a ‘State measure of defense’ that can be waived, even ex officio.” However, the State indicated that “the requirement of exhaustion of domestic remedies constitutes an objective condition of admissibility that can be argued and examined, even ex officio, at any stage or in any instance of the international proceedings”; consequently, the Court must analyze compliance with this requirement. According to the State, “in this case, the alleged victim did not […] file or exhaust the remedies provided for under domestic law,” considering that Mrs. Chocrón Chocrón “failed to file an appeal for review before the Constitutional Chamber of the Supreme Court of Justice,” which “would have opened up the possibility of the annulment of the decision of the Administrative and Political Chamber” issued against her. 16. On this point, Venezuela indicated that, since “the case law of the InterAmerican Court has established that the State that alleges failure to comply with the requirement of exhaustion of domestic remedies must indicate the remedies that should have been exhausted and demonstrate their effectiveness,” it noted that the appeal for review “allows the interested party to obtain an examination by the Constitutional Chamber of the judgments handed down by any other domestic court, including the other Chambers of the Supreme Court of Justice. [E]ven though, under the case law of the Constitutional Chamber, the constitutional review of judgments is restricted, discretionary and of a special nature, this does not mean that this remedy should not be filed and exhausted before resorting to the interAmerican system.” According to the State, “[t]he restricted and special nature of the appeal for review […] does not mean that it would not be effective to safeguard the rights of the alleged victim. There is sufficient evidence of [its] effectiveness in Venezuela.” Accordingly, the State submitted two lists of judgments of the Constitutional Chamber of the Supreme Court of Justice11 declaring “the appeals for review admissible, during two specific periods of time: (a) [t]he period during which the judgment of the Administrative and Political Chamber was handed down in the case of the alleged victim, and (b) the period during which the application against the Venezuelan State was brought before the Inter-American Court.” 17. For its part, the Commission “consider[ed] that the preliminary objection filed by the State [was] time-barred [because], as revealed by Report on Admissibility No. 38/06, approved on March 15, 2006, the State of Venezuela did not file the objection on failure to exhaust domestic remedies before the InterAmerican Commission.” In this regard, the Commission “ask[ed] the InterAmerican Court to reiterate its consistent case law, to declare the preliminary objection [inadmissible …] and to continue with the analysis of the merits of the case.” 11 List of 40 judgments corresponding to the period from June 26, 2003, to June 14, 2004, in which the Constitutional Chamber of the Supreme Court of Justice ruled the appeal for constitutional review “admissible” (file of attachments to the answer to the application, attachment 7, volume IV, folios 1704 to 1709) and list of 225 judgments corresponding to the period from June 15, 2004, to December 12, 2009, in which the Constitutional Chamber of the Supreme Court of Justice ruled the appeal for constitutional review “admissible” (file of attachments to the answer to the application, attachment 8, volume V, folios 2126 to 2159). 7