5
13.
The Commission noted that the criminal complaint referred to by the State
was filed after the adoption of the Report on Admissibility and Merits, in which the
Commission had already taken into account the arguments of the State and in which
it considered that it was appropriate to apply the exception to the rule of exhaustion
under the terms of Article 46(2)(b) and (c) of the Convention. It alleged that the
reference to a new complaint made by the State is "excessively vague, groundless
and inadmissible”, given the fact that the State had timely access to the remedies
and had the opportunity to settle the situation before the matter was submitted
before the Inter-American system. According to the Commission, the State has the
burden of proof regarding the arguments on the preliminary objection and the State
failed to prove that the injured party had the suitable and necessary remedies to
settle the case at the domestic level. Moreover, the Commission indicated that the
argument of the State regarding the criminal proceeding that is pending and was
recently instituted, is admissible after 15 years of the occurrence of the facts and that
it only proves that the petitioners had no suitable remedies to settle the case in due
time. Based on the foregoing, the Commission considered that the preliminary
objection raised "is groundless" and must be rejected.
14.
In addition, the representatives held that the Court must reject the preliminary
objection since the Commission has already conducted an examination of admissibility
in accordance with Articles 46 and 47 of the Convention. According to them, once
such examination is conducted, and in order to obtain legal certainty and procedural
safety, the principle of procedural preclusion operates, which even though it is not
absolute, it means that the decision of the Commission "is final and indivisible.”
Moreover, they alleged that the State “did […] not raise the [preliminary objection] in
due time, nor has it properly based and proved its claim, inasmuch as it was
inconsistent regarding the grounds of the claim during the processing of the case
before the Commission and then the Court, by raising the objection based on different
reasons. They held that the State did not mention any of the specific remedies that it
considers the alleged victims and their representatives have failed to exhaust, nor has
it proved said remedies to be adequate. They considered that the formal filing of the
criminal complaint is an exclusive power of the Public Prosecutor’s Office and it does
not constitute a remedy that the petitioners can access or exhaust. Without detriment
to the foregoing, they highlighted that there has been an unwarranted delay in the
substantiation of the available remedies on the part of the State, which was
determined by the Commission and acknowledged by the State itself and which
exonerates the petitioners from exhausting them. Nevertheless, the next-of-kin “have
exhausted all existing remedies and instances to expedite the investigation into the
facts and to try and punish the responsible.”
15.
The Court has already developed clear guidelines for the analysis of the rule of
exhaustion of domestic remedies, considering the respective formal and material
conditions to analyze in each case.6
16.
In the instant case, the Court notes that the argumentative basis used by the
State to raise such preliminary objection before the Court is different regarding what
was alleged in the proceeding before the Inter-American Commission. On the one
hand, before this Tribunal, the State claims that the formal filing of the criminal
complaint in December 2008 and the opening of the investigation must be considered
6
Cf. Case of Velásquez Rodríguez V. Honduras. Preliminary Objections. Judgment of June 26,
1987. Series C No. 1, para. 88 and Case of Escher et al. V. Brazil. Preliminary Objections, Merits,
Reparations and Costs. Judgment of July 6, 2009. Series C No. 199, para. 28; Case of Perozo et al. V.
Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of January 28, 2009. Series C
No. 195, para. 42 and Case of Ríos et al. V. Venezuela. Preliminary Objections, Merits, Reparations and
Costs. Judgment of January 28, 2009. Series C No. 194, para. 37.
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