16
the merits of the alleged threats, intimidating acts, and pursuit of the García Prieto
Giralt family which occurred after the indicated date.
46.
For all the above reasons, the Court partially dismisses the State’s preliminary
objection raised by the State with respect to the Court’s ratione temporis jurisdiction,
in the terms expressed in the preceding paragraphs.
*
*
*
SECOND PRELIMINARY OBJECTION
“Objection due to the Failure to Exhaust Domestic Remedies”
47.
The State raised an objection with respect to the failure to exhaust domestic
remedies in relation to the alleged threats which occurred prior to and subsequent to
the homicide of Ramón Mauricio García Prieto. In this regard, the State indicated
that “it was not until 1998 that criminal complaints were filed with the Office of the
Attorney General [of the Republic of El Salvador] with respect to the threats and
other intimidating acts. These complaints have been investigated one by one,
without being able to consider any of them as a criminal offense.” According to the
State, due to the fact that the alleged victims failed to exhaust the domestic
remedies that were available to them to guarantee their personal integrity, the
situation cannot be considered in an international forum.
48.
For its part, the Commission requested that the Court dismiss this preliminary
objection and indicated that this situation had already been resolved in its Report on
Admissibility No. 27/99 (infra para. 51). The common intervener concurred with the
Commission’s allegations and requested that the Court declare that this preliminary
objection was extemporaneously raised, and, as a result, should be dismissed.
49.
On this point, the Court would like to emphasize the criteria for an objection
based on the failure to exhaust domestic remedies, which shall apply to the present
case. First, the Court has indicated that the failure to exhaust domestic remedies is
an issue of pure admissibility and that the State that raises this objection should
indicate which remedies remain to be exhausted, and should verify that these
remedies are effective.25 Second, in order to be timely, the objection for the failure
to exhaust domestic remedies should be raised in the first action taken by the State
before the Commission, once the complaint and facts therein have been served upon
it. Otherwise, it will be assumed that the State has tacitly renounced its ability to
raise the objection. Third, the defendant State may expressly or implicitly renounce
its ability to raise the objection for the failure to exhaust domestic remedies.26
50.
In the present case, the State responded to the petition on March 5, 1997
during the admissibility proceedings before the Commission. In its response, it
25
Cf. Case of Velásquez Rodríguez, supra note 12, para. 88; Case of Nogueira Carvalho et al.,
supra note 16, para. 51; and Case of Almonacid Arellano et al., supra note 17, para. 64.
26
Cf. Case of Velásquez Rodríguez, supra note 12, para. 88; Case of Nogueira Carvalho et al.,
supra note 16, para. 51; and Case of Almonacid Arellano et al., supra note 17, para. 64.
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