the State's claim that it was necessary to file a federal constitutional motion, the
representatives argued that this remedy, in addition to being extraordinary, is “exceptional,
discretionary and [is] not subject to a legal term for its resolution.” They added that it is
unreasonable to require the exhaustion of a remedy with those characteristics “after almost
10 years of processing in the lower courts” and given that this legal action “was aimed at
obtaining comprehensive reparation for a disabled child.”
22.
Regarding the cases invoked in which the Supreme Court of Argentina declared the
unconstitutionality of Law 23.982, the representatives stated that the extraordinary
constitutional motion is not “the only legal instrument available to achieve a review of a
law.” They clarified that, on the contrary, any judge “has the capacity to declare
unconstitutional a national law regardless of his level of jurisdiction.” They added that this
was accompanied by the “unacceptable and unlawful omission of failing to require the
intervention of the Public Defender of Minors and Disabled Persons[, who] would have
performed a key role [...] [and] even promoted the declaration of the unconstitutionality of
Law 23.982.” They further indicated that “for an extraordinary remedy to be admitted by
the Supreme Court the party had the obligation to have questioned the constitutionality of
the law at each stage of the proceedings.”
Considerations of the Court
23.
Article 46(1)(a) of the American Convention establishes that in determining the
admissibility of a petition or communication submitted to the Inter-American Commission in
conformity with Articles 44 or 45 of the Convention, it is necessary for the domestic
remedies to have been pursued and exhausted, according to the generally accepted
principles of International Law.14 The Court recalls that the rule of prior exhaustion of
domestic remedies is designed for the benefit of the State, since it seeks to exempt it from
the need to respond before an international body for acts attributed to it before having the
opportunity to resolve them through its own remedies. 15 This not only means that such
remedies must formally exist, but that they must also be adequate and effective, as
contemplated in the provisions of Article 46(2) of the Convention.16
24.
Furthermore, this Court has consistently held that an objection to the exercise of the
Court’s jurisdiction based on alleged failure to exhaust domestic remedies must be filed at
the appropriate procedural stage,17 that is, during the admissibility of the proceedings
before the Commission.18
25.
In this regard, when claiming failure to exhaust domestic remedies, the State must
indicate, at the proper procedural moment, which remedies must be exhausted and their
effectiveness. The Court reiterates that the interpretation it has given for over two decades
14
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary Objections. Order of June 26, 1987. Series C
No. 1 para. 85, and Case of González Medina and relatives v. Dominican Republic, para. 19.
15
Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Order of July 29, 1988, Series C No. 4 para. 61, and
Case of Mejía Idrovo v. Ecuador. Preliminary Objections, Merits, Reparations and Costs, Judgment of July 5, 2011.
Series C No. 228 para. 27.
16
Cf. Case of Velásquez Rodríguez v. Honduras. Merits, para. 63, and Case of González Medina and relatives
v. Dominican Republic, para. 20.
17
Cf. Case of Velásquez Rodríguez v. Honduras, Preliminary Objections, para. 88, and Case of González
Medina, para. 21.
18
Cf. Case of Velásquez Rodríguez v. Honduras, Preliminary Objections, para. 88, and Case of Mejía Idrovo
v. Ecuador, para. 29.
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