9
46.
In this regard, the Commission pointed out in its closing written arguments that
the issues about exhaustion of domestic remedies in the new proceedings was time
barred and, as a result, “the State ha[d] implicitly waived the right to raise such
objection; therefore, it w[as] not relevant to raise it at th[at] stage of the proceedings
before the Court.”
Argument of the representatives
47.
In turn, the representatives asserted that “[a]ccording to Court precedents, the
fact that the State is party to judicial proceedings pending resolution is not grounds for
lack of jurisdiction.”
Considerations of the Court
48.
The Court notes that Article 46(1)(a) of the American Convention provides that,
petitions or communications filed with the Inter-American Commission are admissible
under Article 44 or 45 of the Convention if the remedies under domestic law have been
pursued and exhausted.
49.
In this regard, the Court has set clear criteria. Indeed, of the generally
recognized principles of international law referred to in the rule on exhaustion of
domestic remedies, the foremost is that the Respondent State may expressly or tacitly
waive invocation of this rule. Secondly, in order to be timely, the objection that
domestic remedies have not been exhausted should be raised during the first stages of
the proceedings; otherwise, it will be assumed that the interested State has tacitly
waived its use. Thirdly the State that alleges non-exhaustion of domestic remedies
must indicate which domestic remedies should be exhausted and provide evidence of
the effectiveness thereof.1
50.
The Court notes that the State raised an objection for non-exhaustion of
domestic remedies for the first time during the public hearing held in the instant case.
Therefore, as a result of having failed to contest this issue at the proper stage of the
proceedings, the State tacitly waived its right to raise objections for lack of exhaustion
of domestic remedies, wherefore the Court dismisses the argument related to this
issue.
VI
PRELIMINARY CONSIDERATIONS
1
Cf. Case of the Girls Yean and Bosico. Judgment of September 8, 2005. Series C No. 130, para. 61;
Case of the Moiwana Community. Judgment of June 15, 2005. Series C No. 124, para. 49; and Case of the
Mayagna (Sumo) Awas Tingni Community. Preliminary Objections. Judgment of February 01, 2000. Series C
No. 66, para. 53.
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