exhaust domestic remedies was at the admissibility stage of the procedure before the
Commission, prior to any consideration of the merits of the case. They also indicated that
the Court had been consistent in indicating that the Commission had autonomy and
independence when examining the petitions lodged before it, in exercise of its mandate under
the Convention. While the Court had authority to control the legality of the Commission’s
actions, this did not necessarily involve a review of the procedure, except when grave errors
existed that violated the parties’ right to defend themselves. The representatives emphasized
that, when submitting its answering brief to the Court, the State had not indicated the
existence of a grave error or failure to comply with a procedural requirement that would have
violated the State’s right of defense. It had merely indicated its disagreement with the
Commission’s action, which led to the conclusion that it had not filed this objection
appropriately, because that analysis should have taken place when the Commission was
determining the admissibility of the case.
H.2. Considerations of the Court
89.
The Court has developed clear standards to analyze an objection based on presumed
non-compliance with the requirement of exhaustion of domestic remedies. First, the Court
has interpreted the objection as a defense available to the State and, as such, it may be
waived either expressly or tacitly. Second, this objection must be filed at the appropriate
time so that the State may exercise its right of defense. Third, the Court has asserted that
the State that files this objection must specify the domestic remedies that remain to be
exhausted and demonstrate that such remedies are applicable and effective.52
90.
The Court has indicated that Article 46(1)(a) of the Convention establishes that, to
determine the admissibility of a petition or communication lodged before the Commission, in
accordace with Articles 44 or 45 of the Convention, it is necessary that the remedies under
domestic law have been pursued and exhausted in accordance with generally recognized
principles of international law.53
91.
Therefore, during the admissibility stage of the case before the Commission, the State
should specify clearly the remedies that, in its opinion, have not yet been exhausted in order
to safeguard the principle of procedural equality between the parties that should govern any
proceeding before the inter-American system.54 As the Court has established repeatedly, it
is not the task of either the Court or the Commission to identify ex officio the domestic
remedies that remain to be exhausted, because it is not incumbent on the international
organs to rectify the lack of precision of the State’s arguments.55 Furthermore, the arguments
that give content to the preliminary objection filed by the State before the Commission at
the admissibility stage should correspond to those submitted to the Court.56
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections, para. 88, and Case of Herrera Espinoza et
al. v. Ecuador. Preliminary objections, merits, reparations and costs. Judgment of September 1, 2016. Series C No.
316, paras. 25 and 26.
52
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections, para. 85, and Case of Herrera Espinoza et
al., para. 24.
53
Cf. Case of Gonzales Lluy et al. v. Ecuador. Preliminary objections, merits, reparations and costs. Judgment of
September 1, 2015. Series C No. 298, para. 28, and Case of Chinchilla Sandoval v. Guatemala. Preliminary objection,
merits, reparations and costs. Judgment of February 29, 2016. Series C No. 312, para. 21.
54
Cf. Case of Reverón Trujillo v. Venezuela. Preliminary objection, merits, reparations and costs. Judgment of June
30, 2009. Series C No. 197, para. 23, and Case of Tenorio Roca et al. v. Peru. Preliminary objections, merits,
reparations and costs. Judgment of June 22, 2016. Series C No. 314, para. 21.
55
Cf. Case of Furlan and family v. Argentina. Preliminary objections, merits, reparations and costs. Judgment of
August 31, 2012. Series C No. 246, para. 29, and Case of Herrera Espinoza et al., para. 28.
56
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