14
35.
Furthermore, the Commission filed the arguments regarding said preliminary
objection and pointed out that in the admissibility stage, the State has alleged the nonexhaustion of domestic remedies on the ground that the representatives should resort to
the administrative means in order to object the acts of the State agencies, but that,
despite the fact that Salvador Chiriboga siblings used the administrative remedies they
considered appropriate, such recourses have no final decision due to “[…] serious
problems affecting the administration of justice of Ecuador".
36.
Based on the foregoing, the Commission further alleged that the State, however,
did not refer to the non- exhaustion of domestic remedies regarding the condemnation
proceedings in the admissibility stage, but that it did refer to such in the answer to the
application before the Court, in which the State argued that the expropriation
proceedings was still pending. Therefore, the Commission pointed out that Ecuador was
presenting arguments that were different from the ones put forward in the admissibility
stage, which is inadmissible.
37.
Finally, the Commission argued that the State has not "[...] furnished new
elements that justify a new revision by the Court […of] an issue already duly solved by
the [Commission…]” in the Report on Admissibility. Furthermore, the Commission deems
it appropriate for the Court to take up the case and also it requested the Court to deny
the preliminary objection raised by the State.
38.
In the arguments regarding this preliminary objection, the representatives pointed
out that when they filed the initial petition with the Commission, the requirement of
exhaustion of domestic remedies was fulfilled, "[...] on the ground of the order of the
Court on Constitutional matters that denied [a] writ of amparo in the last resort […] "
filed by the alleged victim, in which the violation of several rules of the Convention was
invoked. They further argued that the first time the State alleged the non-exhaustion of
domestic remedies was at the hearing held before the Commission, on March 2, 2000 but
that the State did not specify the remedies that remain to be exhausted.
39.
Furthermore, the representatives agreed, mainly, with the arguments presented
by the Commission, though they further alleged that the fact of not raising this objection
in the admissibility stage before the Commission entailed an implied waiver of the right
to raise it in the petition's answer before the Court. As a consequence, they alleged that
the State’s procedural opportunity had expired and therefore, requested the Court to
deny the objection.
40.
With regard to the objection of non-exhaustion of domestic remedies filed by the
State, the Tribunal reasserts the criteria established in the case-law related to the filing
of the preliminary objection that needs to be considered in the instant case. In the first
place, the Court has pointed out that the non- exhaustion of domestic remedies is an
issue related to pure admissibility and that the State who asserts such objection must
specify the domestic remedies that remain to be exhausted, as well as prove that those
remedies are effective.32 In the second place, in order for the objection on nonexhaustion of domestic remedies to be timely, it must be pled in the State’s first
submission before the Commission; otherwise, it is presumed that the State has tacitly
32
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary Objections . Judgment of June 26, 1987.
Series C No. 1, para. 88; and Case of Boyce et al. v. Barbados. Preliminary Objection, Merits, Reparations and
Costs. Judgment of November 20, 2007. Series C N°. 169, para. 25; and Case of the Saramaka People, supra
note 21, para. 43.