13
Convention. Taking into account the nature of this matter, the Court considers that
its analysis should be reserved for the decision on the merits.
54.
The Court points out that if the Commission did receive the complaint in this
case while the criminal proceeding was pending a final judgment before the military
court of the last instance, the mere filing of it did not amount to the Commission’s
commencement of the processing of the matter. Strictly speaking, the receipt of
the complaint, which derives from an act of the complainant, should not be confused
with its admission and processing, which are accomplished by specific acts of the
Commission itself, such as the decision to admit the complaint and, when
appropriate, the notification of the State.
55.
It must be noted that in this case the processing began several months after
the complaint was lodged, when there was already a final judgment from the organ
of final instance in the military jurisdiction. It was only then, by means of a
notification on June 29, 1994, that the Commission informed Peru that the complaint
had been submitted and required its observations concerning it, so that the State
could provide that which it believed to be relevant in its defense.
56.
The Court also indicates that the State did not allege the failure to exhaust
domestic remedies before the Commission. By not doing so, it waived a means of
defense that the Convention established in its favor and made a tacit admission of
the non-existence of such remedies or their timely exhaustion, as has been stated in
proceedings before organs of international jurisdiction (such as the European Court
which has maintained that objections to inadmissibility should be raised at the initial
stage of the proceedings before the Commission, unless it proves impossible to
interpose them at the appropriate time for reasons that cannot be attributed to the
Government), (cfr. Eur. Court H.R., Artico judgment of 13 May 1980, Series A No 37,
paras. 24 et seq; Eur. Court H.R., judgment of Foti and others of 10 December
1982, Series A No. 56, paras. 46 et seq; Eur. Court H.R., Corigliano judgment of 10
December 1982, Series A No. 57, paras. 31 et seq; Eur. Court H.R., Bozano
judgment of 18 December 1986, Series A No. 111, para. 44; Eur. Court H.R., Ciulla
case decision of 23 March 1988, Series A No. 148, paras. 28 et seq., and Eur. Court
H.R., de Jong, Baljet and van den Brick judgment of 22 May 1984, Series A No 77,
paras. 35 et seq). and this Court has stated in earlier judgments. (In the Matter of
Viviana Gallardo et. al. No. G 101/81. Series A, para 26; Velásquez Rodríguez Case,
Preliminary Objections, Judgment of June 26, 1987. Series C No. 1, para. 88, 89;
Fairén Garbi and Solís Corrales Case, Preliminary Objections, Judgment of June 26,
1987. Series C No. 2, para. 87, 88; Godínez Cruz Case, Preliminary Objections,
Judgment of June 26, 1987. Series C No. 3, para. 90, 91; Fairén Garbi and Solís
Corrales Case, Judgment of March 15, 1989. Series C No. 6, para. 109; Neira Alegría
et al., Preliminary Objections, Judgment of December 11, 1991. Series C No. 13,
para. 30; Gangaram Panday Case, Judgment of January 21, 1994. Series C No. 16,
para. 38 and 40; Castillo Páez Case, Preliminary Objections, Judgment of January
30, 1996. Series C No. 24, para. 40; Loayza Tamayo Case, Preliminary Objections,
Judgment of January 31, 1996. Serie C No. 25, para 40; in addition to the
aforementioned judgments, as to the opportunity to present defenses, the Court has
expressed its opinion in Caballero Delgado and Santana Case, Preliminary
Objections, Judgment of January 21, 1994. Serie C No. 17, para. 60).
57.
Consequently, the Court deems this preliminary objection to be inadmissible.
Second Objection