14
e)
When the facts of the case occurred, the laws contained no provision
allowing an individual to appeal the decision of the Public Prosecutor before a
court of first instance. According to Act No. 659, the Public Prosecutor is the
person responsible for submitting late declarations to the court of first
instance and, in this case, he did not do so. The request for late registration
was rejected by the Public Prosecutor on July 20, 1998, and this closed the
way to the possibility of resolving the problem, since the alleged victims were
not entitled to bring a legal action in order to reverse the administrative
authority’s decision;
f)
At the time of the facts, Dominican law had not established a remedy
of amparo. On February 24, 1999, almost two years after the registration of
the alleged victims was rejected, the Supreme Court of Justice created the
remedy of amparo, through its case law; this recourse can be filed within 15
days of the alleged harmful act. It is not possible to require the exhaustion of
a remedy that was not expressly established by law;
g)
The remedy of unconstitutionality is of an extraordinary nature and, in
general, only remedies that are appropriate to protect the juridical situation
that has been violated must be exhausted. The validity of this remedy against
administrative acts was decided by the Supreme Court of Justice on August 8,
1998;
h)
During the public hearing before the Court in this case, the State
invoked the non-exhaustion of the remedy of an appeal for review before the
Civil Status Registrar, and the direct remedy based on “full jurisdiction”
before a court of first instance. However, based on the estoppel principle, the
State was barred from alleging these remedies for the first time at that
hearing; and
i)
The discussion concerning whether “there are effective and appropriate
remedies that the parties have not filed at the domestic level,” raised by the
State as a preliminary objection, is an element of the central dispute
submitted to the Court, so that “resolving this question does not correspond
to the characteristics of a preliminary objection.”
Arguments of the representatives
58.
The representatives argued that:
a)
According to Articles 46 and 47 of the American Convention, the
Commission is empowered to determine the admissibility of a petition and
decide on the exhaustion of domestic remedies. Once the Commission has
taken a decision on the admissibility of a case, having examined the
arguments of the parties, this decision is of a “final” and “indivisible” nature;
b)
The Dominican Republic did not argue the failure to exhaust domestic
remedies during the initial stages of the proceeding before the Commission.
In this regard, it should be noted that the State provided several responses
during the admissibility stage before the Commission, such as those of
September 30, 1999; November 22, 1999, submitted to the Commission on
December 1, 1999, and June 7, 2000, submitted to the Commission on June
19, 2000, in which it maintained that domestic remedies had not been
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