to Article 46(1)(a) of the Convention is consistent with international law,19 and that
according to its own case law20 and international jurisprudence,21 it is not the Court’s or the
Commission’s duty to identify ex officio the domestic remedies pending exhaustion. The
Court highlights that it does not correspond to international bodies to correct the lack of
accuracy of the State’s claims.22
26.
In this respect, the Court notes that State argued that the alleged victims should
have filed an extraordinary appeal to indicate why “Law 23.982 would not meet
constitutional principles.” Specifically, the State indicated that this extraordinary remedy
would have allowed “the intervention of the Supreme Court in an effort to maintain
constitutional supremacy.”
27.
In this case, in the first place, the extraordinary constitutional motion is –as its name
indicates- is of an extraordinary nature, and is intended to question a law and not to review
a decision. In this regard, both the Commission and the representatives claimed that under
the law in effect in Argentina the extraordinary motion that the State presented as
appropriate is of a “discretionary” and “exceptional” character and “it is not subject to a
term” for its admission or duration. Thus, the Court deems that the motion would not have
been effective to remedy the alleged delay in the civil suit seeking compensation for
Sebastián Furlan, an aspect which is one of the main disputes in this case. Indeed, the
aforementioned remedy would have been limited to questioning the constitutionality of the
norm that regulated the way in which the indemnity was paid. Thus, in the specific
circumstances of this case, this Court considers that the function of that remedy within the
domestic legal system was not effective in protecting the legal situation infringed in this
case, therefore it cannot be considered as a domestic remedy that should have been
exhausted.23
28.
Also, the Court notes that during the admissibility proceedings before the
Commission the State argued that if the alleged victim “considered that the decision was
arbitrary and that it therefore constituted sufficient federal offense” he should have filed the
“[e]xtraordinary [a]ppeal before the Supreme Court.” 24 Consequently, the State considered
that the alleged victim “opt [ed] to accept the decision of the Chamber,” and therefore “it
was left with no option but to begin the execution of the judgment and obtain approval of
the settlement”25 ordered as reparation.
19
Cf. Case of Reverón Trujillo v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Order of
June 30, 2009. Series C No. 197 para. 22, and Case of Usón Ramírez v. Venezuela. Preliminary Objections, Merits,
Reparations and Costs. Order of November 20, 2009. Series C No. 207 para. 22.
20
Cf. Case of Velásquez Rodríguez v. Honduras, para. 88, and Case of Usón Ramírez v. Venezuela, para. 22.
21
Cf. European Court of Human Rights (hereinafter “ECHR”), Deweer v. Belgium, (No. 6903/75), Judgment
of February 27, 1980, para. 26; Case of Foti et al. v. Italy, (No.7604/76; 7719/76; 7781/77; 7913/77), Judgment
of December 10, 1982, para. 48, and Case of de Jong, Baljet and Van den Brink v. The Netherlands, (No. 8805/79
8806/79 9242/81), Judgment of May 22, 1984, para. 36.
22
Cf. Case of Reverón Trujillo, para. 23, and Case of Chocrón Chocrón v. Venezuela. Preliminary Objections,
Merits, Reparations and Costs. Judgment of July 1, 2011. Series C No. 227 para. 23. See also ECHR, Case of
Bozano v. France, Judgment of 18 December 1986, para. 46.
23
Similarly, see Case of Herrera Ulloa v. Costa Rica, Preliminary Objections, Merits, Reparations and Costs.
Judgment of July 2, 2004. Series C No. 107, para. 85.
24
Brief of the State of Argentina of February 21, 2003 (file of appendices to the Report on Merits, volume IV,
page 1791).
25
Brief of the State of Argentina of February 21, 2003, page 1791.
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