-9(d) Owing to the lack of justification for this decision, the State requested the
Court to rule on the obligation to justify the decisions of the Commission and
requested that, in its absence, the application should be rejected.2
43.
The Commission and the representatives presented their written observations
on this objection (supra para. 26).
44.
The Commission indicated with regard to both grounds, that:
(a) The State’s allegations do not constitute a preliminary object, because the
facts of the case that have constituted violations of the right to a fair trial
and also the ineffectiveness of domestic remedies are precisely one of the
elements of the dispute submitted to the Court’s consideration;
(b) There is no valid motive for re-opening the discussion on exhaustion of
domestic remedies, in accordance with Article 46(1) of the Convention, or
on the applicability of the exceptions established in Article 46(2) thereof,
or on the timeliness of the lodging of the petition. Moreover, the State did
not allege the latter during the appropriate procedural stage;
(c) Consequently, it requested the Court to reject the State’s first preliminary
objection as manifestly groundless and inadmissible;
(d) There is no reason to re-open the discussion on the timeliness of the
lodging of the application. The State did not submit this argument at the
appropriate procedural stage:
i.
During the proceedings before the Commission, the State did not
question the reasonableness of the time limit for lodging the petitions
vis–à–vis the requirement established in Article 46(1) of the
Convention and developed in Article 32 of the Commission’s Rules of
Procedure;
ii. There is no treaty-based or regulatory provision that obliges the
Commission to give a detailed explanation of the reasons why it
considers that a petition complies with the admissibility requirements;
and
iii. Part of the description of the facts of the case corresponds to the
concept of “forced disappearance” and a continuing partial denial of
justice has occurred; the Commission’s consistent practice has been to
consider that the rule of the opportune lodging of a petition does not
apply when it refers to a continuing situation;
e) The reasonable period of time referred to in Article 32(2) of the Rules of
Procedure is not a treaty-based period of time, as the State affirms,
because, according to the Convention (Article 46(2)), there is no specific
time limit for lodging the petition when any of the exceptions to the
requirement to lodge it within six months are applicable. In the instant
case, at least two of these exceptions have been verified, so that this rule
is not applicable, as the Commission has considered; and
(f) The application and interpretation of the Commission’s Rules of Procedure
concerning the reasonable period is an attribute of the Commission. The
Court has powers to consider in toto matters that are in dispute, but the
2
Cf. brief with preliminary objections, answer to the application and with observations on the
requests and arguments brief (merits file, tome II, pp. 10 and 11, folios 356 and 357).
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