11
the admissibility stage and the answering brief before the Court, “it is evident that the arguments
and case law sources by which the State seeks to comply with the requirement to prove the
appropriateness and effectiveness of the application for amparo are different in the two briefs.”
Consequently, the Commission concluded that “the arguments presented before the Inter-American
Court to justify the failure to exhaust the application for constitutional amparo were time-barred.”
26.
Additionally, the Commission reiterated “all aspects of the analysis made in its Admissibility
Report, which was based on the information available at the time, as well as on the treaty-based and
regulatory provisions that govern the burden of proof in this matter and that grant it the primary
authority to rule on the requirements for admissibility of petitions.” Also, the Commission emphasized
that the petitioner had indicated that, in Bolivia, no judgment reversing an application of the
extinction of the criminal action had been handed down in an amparo proceeding, and that the State
had not contested the petitioner’s argument regarding the ineffectiveness of the application for
amparo for cases such as that of I.V., even though it was appropriate in accordance with the burden
of proof applicable in these circumstances. Thus, “at the time of its ruling, the information available
to the Commission indicated that I.V. had exhausted all the ordinary remedies during the criminal
proceedings.” In these circumstances, the Commission determined that “the State failed to prove, at
the proper procedural opportunity and pursuant to the rules for the burden of proof applicable to the
objection of the failure to exhaust domestic remedies, that the application for amparo would have
been appropriate and effective in this case.” Consequently, in the Commission’s opinion, I.V. had
exhausted the domestic remedies.
27.
Regarding the State’s argument that the State cannot be required to abide by the arguments
made at the admissibility stage in the proceedings before the Court, the Commission stressed that
this requirement is in keeping with the Court’s case law and constitutes a basic expression of the
principles of “equality of arms” and legal certainty that apply to the inter-American procedure. Lastly,
it emphasized that “a decision to the contrary would mean that the Inter-American Court could rule
on arguments relating to the requirement of exhaustion of domestic remedies that the Commission
was unable to evaluate and that the petitioners did not have the opportunity to contest at the
corresponding stage.”
28.
The presumed victim’s representative argued that the preliminary objection filed by the
State before the Court did not correspond to the objection filed at the admissibility stage before the
Commission. She indicated that the State had not filed any objection to the rule of the exhaustion of
domestic remedies based on the cassation procedure at the admissibility stage before the
Commission; consequently, filing an objection related to this remedy at the present procedural stage
was time-barred. In addition, she argued that the cassation procedure was reserved for contesting
rulings that decide restricted appeals, and not an incidental appeal as in this case with Ruling
514/2006, which was the judgment delivered by the First Criminal Chamber of the La Paz Superior
Court of Justice. Consequently, the State’s pretension that “this Court […] consider that the cassation
procedure should have been filed and exhausted by I.V., when according to the law and procedure
this was not (and is not) feasible” constituted a lack of procedural loyalty. Lastly, the representative
asserted that “[t]he argument on which the State founds this preliminary objection is totally false
and proof of this is that the State has not cited any jurisprudential precedent to support it, and did
not attach to its brief any final judgment (that is, a judgment in third instance) of the Supreme Court
of Justice, or any constitutional judgment of the Constitutional Court.” She concluded that, in I.V.’s
case, the cassation procedure was not admissible to contest Ruling 514/2006 and, therefore, asked
the Court to reject the objection filed by the State.
29.
The representative indicated that, in its observations of December 4, 2007, during the
admissibility stage, the State had only indicated, in general, that the remedies of the domestic
jurisdiction had not been exhausted, merely mentioning the application for constitutional amparo.
However, the State did not reveal how the application for amparo was fully available and how it was