State had initially raised this objection at the appropriate procedural moment and had held that the petition became inadmissible, it then changed its position during the admissibility proceeding when it stated that it does not oppose family A’s petition, despite not having exhausted the domestic remedies. Consequently, this amounts to a tacit withdrawal of the objection filed by the State during the admissibility proceeding before the Inter-American Commission. 23. It should be noted that in its Admissibility Report the Inter-American Commission took into consideration that “[i]n the instant case, the State maintains that although domestic remedies have not been exhausted, it does not oppose the petition.” Furthermore, in that report, the Commission concluded that “there has been an unwarranted delay on the part of Guatemalan authorities regarding the facts reported” and, as a result, the exception to the exhaustion of domestic remedies provided for in Article 46(2) (c) of the American Convention is applicable. 18 24. In the second place, during the proceeding before this Court, the State once again filed a preliminary objection regarding the failure to exhaust domestic remedies, under the terms of Article 46 of the American Convention, “since in the present case, the criminal proceeding is still in the investigation stage.” The Court considers that, given the aforementioned tacit withdrawal of this objection before the Commission, under the principle of estoppel 19, the State cannot now change its position by arguing before the Court the failure to exhaust domestic remedies. 25. The Court emphasizes that the debate on the effectiveness of the criminal investigation into the facts of this case implies an assessment of the State’s actions in relation to its obligation to guarantee the rights recognized in the American Convention whose violation is alleged, a matter that is closely connected with the merits of the dispute. 20 The Court further notes that, during the period when the Commission was examining this case, Guatemala introduced reforms to its rules of criminal procedure, consisting of supposed controls to “activate criminal proceedings.” However, given that these arguments were submitted to the Court for the first time after the initial petition was filed before the Commission, and after its decision on admissibility (supra paras.2.a and 2.b), it is not appropriate to issue a ruling on this point in the context of this preliminary objection. Consequently, the Court dismisses the preliminary objection filed by the State regarding the failure to exhaust domestic remedies. B) Regarding the alleged violation of the State’s right to defense B.1. Arguments of the parties and of the Commission 26. The State argued that it was “surprising” to find that Commission had declared a supposed violation of Articles 22 and 23 of the American Convention, in connection with Article 1(1) thereof, in the Merits Report, “since this violates the State’s right to defense, because did not know from the outset the arguments on which the supposed additional violations were based.” 27. The Commission argued that the initial assessment of possible violations made in the Admissibility Report is merely intended to determine, from a prima facie perspective, whether facts have been presented which, if proven, would tend to establish violations of the American Convention, and whether the petition is “manifestly groundless” or “obviously out of order.” In this case, the Commission did not refer prima facie to Articles 22 and 23 of the Convention. However, it did mention, as part of the allegations 18 Cf. Admissibility Report No. 109/10 of September 8, 2010, paras. 31 and 34 (File of the proceedings before the Commission, page 251). 19 According to international practice, when a party to a litigation has adopted a specific attitude that adversely affects its own position or benefits the position of the other party, under the estoppel principle, it cannot then assume another position contrary to the first. Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary Objections, supra, para. 96, and Case of Mémoli v. Argentina. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 22, 2013. Series C No. 265, para. 34. 20 Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary Objections, supra, para. 96, and Case of the Kichwa Indigenous People of Sarayaku v. Ecuador. Merits and Reparations. Judgment of June 27, 2012. Series C No. 245, para. 30. 10