29.
This Court has affirmed consistently that an objection to the exercise of the
Court’s jurisdiction based on the alleged lack of exhaustion of domestic remedies
must be submitted in a timely manner from the procedural standpoint15, that is,
during the admissibility of the proceeding before the Commission.16 Moreover, the
Court reiterates that pursuant to its jurisprudence17 and international jurisprudence18,
it is not the task for the Court nor of the Commission to identify ex officio the
remedies to be exhausted, but rather it is up to the State to identify, in a timely
manner, the domestic remedies that should be exhausted and their effectiveness.
30.
In the present case, the State raised the objection of non-exhaustion of
domestic remedies in relation to the civil action for damages in its brief presented to
the Commission on July 10, 2006. At said time, it claimed that Mr. Mejía Idrovo had
to have lodged a civil action for damages before the competent judges of Ecuador for
them to determine the damage and amount of compensation. Subsequently, on June
24, 2010, in its answer to the application, the State added that the action for
noncompliance introduced by the new Ecuadorian Constitution was also an
appropriate remedy.
31.
In its Report on Admissibility and Merits No. 07/09, the Commission
concluded that the civil action for damages within the judicial proceedings of an
ordinary nature did not constitute an appropriate remedy to comply with that
established by the Constitutional Tribunal in its Resolution of May 12, 2002, which
according to said Court, was self-executable, and as such the Executive branch and
Armed Forces should have complied with said decision. As such, it considered that
the action of unconstitutionality filed by Colonel Mejía Idrovo before the
Constitutional Tribunal was the appropriate remedy to declare unconstitutional the
challenged executive decrees.
32.
In regard to the civil action for damages, the Court adheres to the position
adopted by the Commission in its Report on the Admissibility and Merits, in that it
considers that the action for damages was not the most appropriate remedy to repair
the infringed legal situation regarding the alleged violations of the rights to judicial
guarantees and protection of Mr. Mejía Idrovo. In this sense, the Court notes that
both the Commission and representatives argued that pursuant to current domestic
law of the State at the time of the facts, the decisions of the Constitutional Tribunal
were self-executing, given that they involve a procedural act that has a res judicata
effect, that is, that they must be complied with by the different domestic authorities
without the need rising for another legal action. In this regard, the State did not
present arguments related to the self-executing nature of the Constitutional
15
Cf. Case of Velásquez Rodríguez V. Honduras. Preliminary Objections, supra note para. 88; Case
of Gomes Lund et al. (“Guerrilha Do Araguaia) V. Brazil, supra note 9, para. 38, and Case of Vera Vera et
al. V. Ecuador, supra note 12, para. 14.
16
Cf. Case of Velásquez Rodríguez V. Honduras, Preliminary Objections, supra note 12, para. 88;
Case of Gomes Lund et al. (Guerrilha do Araguaia) V. Brazil, supra note 9, para. 38, and Case of Vera
Vera et al. V. Ecuador, supra note 12, para. 14.
17
Cf. Case of Velásquez Rodríguez V. Honduras, Preliminary Objections, supra note 12, para. 88;
Case of Gomes Lund et al. (Guerrilha do Araguaia) V. Brazil, supra note 9, para. 38, and Case of Vera
Vera et al. V. Ecuador, supra note 12, para. 14.
18
Cf. ECHR. Case of Deweer v. Belgium, Judgment of 27 February 1980, Series to no. 35, para. 26;
ECHR. Case of of Jong, Baljet and van den Brink v. the Netherlands, Judgment of May 22, 1984, Series to
no. 77, para. 36, and Case of Paksas versus Lituania, Judgment 01.06.2011, para. 75.
10