4
of revision, appeal, or similar. Its full jurisdiction to consider and review in toto the
previous actions and decision of the Commission, results from its nature of single
jurisdictional body in this matter. In this sense, while ensuring a more complete
judicial protection of the human rights acknowledged by the Convention, the State
Parties that have accepted the jurisdiction of the Court are guaranteed the strict
respect of its regulations.”7 In that same line, it has been established that “if the
Commission decided the matter of admissibility, it should be analyzed again before
this Court given the jurisdictional nature of this body in contrast to the first. This
form of action is in perfect tune with the Court’s power of full jurisdiction regarding
the decisions made by the Commission.”8 I share this opinion and point out that just
as this Tribunal has the jurisdiction necessary to decide if there has been a violation
of human rights, it also has jurisdiction to decide procedural matters stated as
grounds for its possibility to hear the case.9 Therefore, there is no reason for the
Tribunal not to revise the procedural rules imposed by the Commission regarding an
alleged “timely” moment to present the preliminary objections.
14. Based on the aforementioned, the Court should have analyzed the effectiveness
of the appeal for revision indicated by the State, in order to conclude if in effect the
domestic remedies were or not exhausted in the terms of the Convention. Despite
the fact that I agree with the reasons that serve as grounds for the decisions on
merits adopted by the majority, I consider it necessary and convenient to assume
that the requirement of lack of exhaustion of domestic remedies cannot be a defense
the State may waive tacitly, since it constitutes a rule on which the subsidiary
principle of the Inter-American System is based.
Thus, I present the reasons for my dissenting opinion in the present case. Date utsupra
Einer Elías Biel Morales
Judge ad hoc
Pablo Saavedra Alessandri
Secretary
7
I/A Court H.R., Case of Velásquez Rodríguez v. Honduras. Preliminary Objections. Judgment of
June 26, 1987. Series C No. 1, para. 29.
8
Dissenting opinion of judge ad hoc Pier Paolo Pasceri, supra note 6.
9
I/A Court H.R., Case of 19 Tradesmen v. Colombia. Preliminary Objection. Judgment of June 12,
2002. Series C No. 93 para. 27; I/A Court of H.R., Case of Constantine et al. v. Trinidad and Tobago.
Preliminary Objections. Judgment of September 1, 2001. Series C No. 82, para. 71.
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