In the Durand and Ugarte case,
the Inter-American Court of Human
Rights (hereinafter “the Court” or “the Inter-American Court”), composed of
the following judges: (*)
Hernán
Salgado Pesantes, President
Antônio
A. Cançado Trindade, Vice President
Máximo
Pacheco Gómez, Judge
Alirio
Abreu Burelli, Judge
Sergio
García Ramírez, Judge
Carlos
Vicente de Roux Rengifo, Judge and
Fernando
Vidal Ramírez, Judge ad hoc;
also present,
Manuel
E. Ventura Robles, Secretary, and
Renzo
Pomi, Deputy Secretary,
pursuant
to Article 36(6) of the Court’s Rules of Procedure (hereinafter “the Rules
of Procedure), renders the following Judgment on the preliminary objections
filed by the State of Peru (hereinafter “the State” or “Peru”).
I
1. The case was submitted to the Court on August
8, 1996, by the Inter-American Commission on Human Rights (hereinafter “the
Commission” or “the Inter-American Commission”). It had originated in petition No. 10,009 received at the Secretariat
of the Commission on April 27, 1987.
II
2. The Court summarizes the facts in the instant
case, as set out in the application, as follows:
a) The Commission
brought a case against the State of Peru for the unlawful deprivation of personal
freedom and subsequent forced disappearance of Messrs. Nolberto Durand Ugarte
and Gabriel Pablo Ugarte Rivera;
b) According to
the application, police with the Dirección contra el Terrorismo (Counter-Terrorism
Police, hereinafter “DIRCOTE”) detained Nolberto Durand Ugarte and Gabriel
Pablo Ugarte Rivera on February 14 and 25, 1986, respectively, on suspicion
of terrorism. After a police investigation,
they were turned over to Lima’s Thirty-ninth Examining Court, which instituted
the corresponding criminal proceedings. By
order of the court, they were later moved to the San Juan Bautista Social
Rehabilitation Center -CRAS- on the
prison island of El Frontón (hereinafter “El Frontón”), where they were incarcerated. At the time of their arrest, Mrs. Virginia Ugarte
Rivera, mother of Nolberto and sister of Gabriel Pablo, petitioned Lima’s
Forty-sixth Examining Court for writs of habeas corpus, one for her son and the other for her brother. However, the process was interrupted when riots
broke out in various Peruvian prisons. Those
petitions were filed on February 25 and 26, 1986. On July 17, 1987, Lima’s Sixth Police Court,
which was hearing the terrorism cases against Mr. Durand Ugarte and Mr. Ugarte
Rivera, found them innocent, ordered that they be released and that the case
be closed;
c) On June 18, 1986,
persons incarcerated for the crime of terrorism at El Frontón and other prisons
in the country rioted. On June 19,
1986, an operation assigned to the Peruvian Navy got underway to quash the
riot and left scores of inmates either dead or wounded.
At the time of the riots, Mr. Durand Ugarte and Mr. Ugarte Rivera were
being held at El Frontón. That day, the President of the Republic issued
Supreme Decree No. 006-86-JUS, published in El Peruano on June 20, 1986, declaring the prisons to be a “restricted
military zone” and placing them formally under the jurisdiction of the Commander
of the Armed Forces;
d) Mrs. Virginia
Ugarte Rivera learned that a number of inmates had survived the events described
in the preceding paragraph and were in the Navy’s custody. On June 26, 1986, she filed for a writ of habeas corpus against the Director of Prisons
and the Warden at El Frontón, on behalf of Mr. Durand Ugarte and Mr. Ugarte
Rivera. That same day, the corresponding
order was issued to institute proceedings. On June 27, 1986, the First Examining Court
of Callao dismissed the petition of habeas
corpus. On July 15, 1986, the First
Police Court of Callao upheld the June 27 decision of the First Examining
Court of Callao. On August 13, 1986
the First Criminal Law Chamber of the Supreme Court ruled against nullification
of the July 15 ruling. The Tribunal
of Constitutional Guarantees heard a remedy of cassation brought by Mrs. Virginia
Ugarte Rivera challenging the decision delivered by the First Criminal Law
Chamber, and on October 28, 1986, ruled that “the decision in question [stood]
firm and that claimant still had the right to bring an action once again”;
and
e) On June 24, 1986,
the Navy’s Permanent Court-Martial ordered proceedings to determine whether
the Navy troops that put down the riot were criminally liable.
The Navy’s Second Permanent Court of Inquiry, after hearing and prosecuting
the case, dismissed it on July 6, 1987, on the grounds that the accused were
not liable. That ruling was upheld by the Navy’s Permanent
Court-Martial on July 16, 1987. On
July 20, 1989, the Review Chamber of the Supreme Court of Military Justice
confirmed a decision handed down by the Court-Martial Chamber of the Supreme
Court on January 30, 1989, which dismissed the case against those accused
of crimes against the life, personal integrity, and health of the deceased
El Frontón inmates and of aggravated abuse of authority.
III
3. On April 27, 1987, the Commission received a petition
alleging violations of the human rights of Mr. Durand Ugarte and Mr. Ugarte
Rivera. On May 19 of that year, it
forwarded the pertinent parts of the petition to the State, pursuant to Article
34 of the Commission’s Regulations. It also asked the State to provide information
as to the exhaustion of local remedies.
4. On January 19, 1988, the Commission again asked
State for information relevant to the case. It repeated its request on June 8 of that same
year, and pointed out that absent a reply, it would consider application of
Article 42 of its Regulations. On February
23, 1989, the Commission again requested information. On May 31, 1989, the claimants requested that
the facts denounced be presumed to be true.
5. The State filed a brief dated September 29, 1989,
wherein it stated the following:
It is common knowledge that cases 10,009 and 10,078 are
being prosecuted in Peru’s military courts, pursuant to the laws currently
in force. Since the internal jurisdiction
of the State has not been exhausted, it would be advisable for the IACHR to
wait for the conclusion of such proceedings before arriving at a final decision
on the cases in question.
6. On June 7, 1990, the Commission requested information
from the State concerning the exhaustion of local remedies, the proceedings
under way in the military courts, and whether the whereabouts of Mr. Durand
Ugarte and Mr. Ugarte Rivera had been ascertained.
The State did not respond to this request.
7. On March 5, 1996, the Commission approved Report
No. 15/96 and forwarded it to the State on May 8 of that year.
In the operative part of that report, the Commission resolved:
1. TO
DECLARE that Peru is responsible for violating, to the detriment of Gabriel
Pablo Ugarte Rivera and [Nolberto] Durand Ugarte, the right to personal liberty,
the right to life, the right to judicial protection, and the right to the
judicial guarantees of due process of law, recognized in articles 7, 4, 25
and 8 of the American Convention and that in the instant case, Peru failed
to comply with the obligation to respect the rights and freedoms recognized
in the Convention and to ensure their free and full exercise, as set forth
in Article 1(1) of the Convention.
2. TO
RECOMMEND to Peru that it pay adequate, prompt and effective compensation
to the victims’ next of kin for the moral and material damages caused as a
consequence of the facts denounced and established by the Commission and by
the Inter-American Court of Human Rights.
3. TO
REQUEST the Government of Peru that, within 60 days of notification of
this report, it inform the Inter-American Commission on Human Rights of any
measures it has adopted in the instant case, in furtherance of the recommendations
contained in the preceding paragraph.
4. TO
TRANSMIT the present report in accordance with Article 50 of the American
Convention and to advise the Government of Peru that it is not authorized
to publish it.
5. TO
SUBMIT this case to the Inter-American
Court of Human Rights for consideration if, within a period of 60 days, the
Peruvian State has not complied with the recommendation made in paragraph
2.
8. On July 5, 1996, the State sent the Commission
a copy of a report prepared by a task force composed of representatives of
various State offices. The inference
of the report, according to the Commission, is that the State did not comply
with the Commission’s recommendations.
9. On August 8, 1996, the Commission filed the application
with the Court (supra, para. 1).
IV
10. When filing the application with the Court, the
Commission invoked articles 50 and 51 of the American Convention on Human
Rights (hereinafter “the Convention” or “the American Convention”) and articles
26 et seq. of the Rules of Procedure in force at that time.
[1]
The Commission brought this case for the Court
to determine whether the following articles of the Convention had been violated:
1(1) (obligation to respect rights), 2 (duty to adopt domestic legislative
or other measures), 4 (right to life), 7.6 (right to personal liberty), 8
(right to a fair trial), 25 (right to judicial protection) and 27.2 (suspension
of guarantees). The Commission petitioned
the Court to order Peru to conduct the investigations necessary to identify,
prosecute and punish those responsible for the violations committed, to report
the whereabouts of the mortal remains of Mr. Durand Ugarte and Mr. Ugarte
Rivera, and to turn over those remains to their next of kin.
Finally, the Commission petitioned the Court to order the State
to provide adequate material and moral compensation to
the next of kin of Nolberto Durand Ugarte y Gabriel Pablo Ugarte for the grave
injury they suffered as a consequence of the multiple violations of the rights
upheld in the Convention [and to] pay the costs that the victims’ next of
kin and representatives have incurred both in the proceedings with the Commission
and in the proceedings in the case before the Court.
11. The Commission named Mr. John S. Donaldson as
its Delegate, Mr. Alvaro Tirado Mejía as Alternate Delegate, and Mr. Domingo
E. Acevedo as Advisor. It named the
following persons as assistants: Ronald Gamarra, Katya Salazar, José Miguel
Vivanco, Viviana Krsticevic, Ariel Dulitzky and Marcela Matamoros. On March
9, 1998, the Commission named Mr. Helio Bicudo and Mr. Domingo E. Acevedo
as its Delegates. By a note received
on June 18, 1998, Ms. Matamoros informed the Court that she was resigning
her role in the instant Case.
12. On August 23, 1996, once the President of the
Court (hereinafter “the President”) had done a preliminary review of the application,
the Secretariat of the Court (hereinafter “the Secretariat”) sent the State
notification of the application and advised it of the time limits for filing
its reply and any preliminary objections and for designating its representation
in the proceedings. The Secretariat
also invited the State to name a judge ad hoc.
13. On September 6, 1996, Peru informed the Court
that Mr. Jorge Hawie Soret had been designated as the State’s Agent in the
case.
14. At the State’s request, on September 19, 1996,
the President extended the deadline for designation of the judge ad hoc to October 8, 1996. On October 4, 1996, the State designated Mr.
Fernando Vidal Ramírez as judge ad hoc.
15. On September 20, 1996, the State entered preliminary
objections, which it classified as follows:
One:
Failure to exhaust local remedies;
Two:
Case already decided by the Commission;
Three:
Res judicata;
Four:
Extemporaneous filing;
Five:
Lack of jurisdiction of the Inter-American Court
of Human Rights;
Six:
Procedural error, lack of competence and lack of standing
(proceedings conducted with the Inter-American Commission on Human Rights
invalid by reason of [...] the omissions and irregularities present); and
Seven:
The Commission’s lack of standing.
The State
also requested that the Court order the application filed based on the objections
entered.
16. On October 29, 1996, the Commission submitted
its written brief in response to the preliminary objections, and requested
that the Court dismiss the objections in toto.
17. On November 26, 1996, the State presented its
response to the application.
18. Via two briefs dated January 6 and May 30, 1997,
respectively, the State petitioned the Court to rule on the preliminary objections
it had filed before deciding the merits of the case.
On June 2, 1997, the Secretariat informed the State that its request
would be brought to the Court’s attention at its upcoming session.
On September 25, 1997, the Court advised the State that “the decision
on the merits of the case [would] never be issued until the judgment on the
State’s preliminary objections [had been] entered.”
19. On March 9, 1998, the President convened the Inter-American
Commission and the Peruvian State to a public hearing that was to be held
at the seat of the Court on June 8 of that year to hear their arguments on
the preliminary objections.
20. The public hearing was at the seat of the Court
on June 8, 1998, at which there appeared:
For the State of Peru:
Jorge Hawie Soret, Agent;
For the Inter-American Commission
on Human Rights:
Domingo E. Acevedo, Delegate;
Ariel Dulitzky, Assistant, and
Ronald Gamarra, Assistant.
21. As evidence to facilitate adjudication of the
case, on November 9, 1998, the President requested that the State provide
all documentation pertaining to the petitions of habeas corpus filed on February 26 and June 26, 1986, and any other
petition filed seeking a writ of habeas
corpus on behalf of Mr. Durand Ugarte and Mr. Ugarte Rivera, as well as
the case brought against these two men for the crime of terrorism.
22. On
November 27, 1998, by order of the President, the Commission was asked, as
per its request in the application, to inform the Court what evidence from
the Neira Alegría et al. Case was
relevant to the processing of the instant case.
23. On December 14, 1998, the Commission requested
that the Court add the following evidence from the Neira Alegría et al. Case to the evidence in the instant
case: the Minority Report of the Peruvian Congressional Committee of Inquiry
into the events that transpired on June 18 and 19, 1986, at Lurigancho, El
Frontón and Santa Barbara prisons; press clippings reporting the events at
those prisons; a report on the autopsies conducted on the bodies of the El
Frontón inmates by physicians Augusto Yamada, Juan Hever Kruger and José Raez
González; the military case in the El Frontón affair, and a transcript of
the statements given by the witnesses who testified at the public hearing
the Court held on July 6 and 10, 1993.
24. On January 22, 1999, the State supplied only the
October 28, 1986 decision handed down by the Court of Constitutional Guarantees
on the petition of cassation filed by Mrs. Virginia Ugarte Rivera challenging
the decision delivered by the Supreme Court’s First Criminal-Law Chamber,
documentation concerning the various steps taken and the difficulties encountered
in locating the case files on the petitions filed seeking writs of habeas corpus and the terrorism trial,
and documentation supplied by the National Criminal Law Court for Terrorism
Cases.
25. On March 3, 1999, the State was again asked to
submit documentation concerning the petitions filed seeking writs of habeas corpus, and the case file on the
terrorism trial, which the Court had requested to facilitate adjudication
of the case. As of the date of this
judgement, the State has still not submitted the requested information.
26. On April 7, 1999, the Secretariat requested information
from the General Secretariat of the Organization of American States as to
whether the Peruvian State had sent it any notification of states of emergency
or suspensions of guarantees between June 1, 1986, and July 20, 1987, pursuant
to Article 27(3) of the Convention. On May 19, 1999, the General Secretariat’s Department
of International Law reported that no such notification had been received
or recorded.
27. To facilitate adjudication of the case, on April
7 of this year the Secretariat requested a copy of Supreme Decree No. 012-86
IN of June 2, 1986. The State forwarded
a copy of that decree on May 5, 1999.
V
28. Peru has been a State Party to the American Convention
since July 28, 1978, and accepted the jurisdiction of the Court on January
21, 1981. Hence, under the terms of
Article 62(3) of the Convention, the Court has jurisdiction to hear the preliminary
objections brought by the State.
VI
29. The preliminary objections filed by the State
are presented, grouped and examined under the following procedural principles,
given their nature and similarities: a) exhaustion of local remedies (cf.
objection one); b) matter decided, res
judicata and the Court’s lack of jurisdiction (cf.
objections two, three and five); c) the extemporaneous filing of the application
(cf. objection four), and d) procedural
error, lack of competence to take action and the Commission’s lack of standing
(cf. objections six and seven).
VII
Objection One
30. The State’s first objection concerns the “failure
to exhaust local remedies.”
31. The Court summarizes the State’s arguments as
follows:
a) Under Article
46 of the American Convention and articles 44 and 45 of the Commission’s Regulations,
in order for the Commission to admit a petition, the remedies under domestic
laws must have been pursued and exhausted in accordance with generally recognized
principles of international law, except when the domestic legislation of the
state concerned does not establish such remedies, the party alleging violation
of his rights has been denied access to the remedies under domestic law or
has been prevented from exhausting them, or there has been an unwarranted
delay in rendering a final judgment on the aforementioned remedies;
b) The Peruvian
legal system has provisions governing the rights involved in the petition
and has the jurisdictional bodies and proceedings to guarantee exercise of
those rights; a civil action to have a person declared missing and/or presumed
dead, and the remedy of habeas corpus.
The claimants, however, did not go to the regular courts, disregarded
the laws stipulated in the Civil Code and failed to have the persons declared
officially missing and/or presumed dead which, had they done so, would have
unleashed the corresponding chain of events.
Had the claimants availed themselves of these means, they would have
had an expeditious means of seeing to their interests in inheritance-related
matters. These arguments were made again at the public hearing;
c) As for the remedy
of habeas corpus, the State’s argument
was that “if exercise of the remedy of habeas corpus was not prohibited, then it [the Commission] can hardly
conclude that [… application of the] decrees [No. 012-86 IN and No. 006-86
JUS of June 2 and 6, 1986, respectively] implied that said remedy was suspended,
and even less that it was ineffective”, and
d) Article 8 of
the Habeas Corpus and Amparo Act [Ley de Hábeas Corpus y Amparo]
(Law No. 23,506) provides that the “final decision constitutes res judicata only when it is favorable
to the party filing the remedy.” The
ruling that led to the filing of this application was delivered in accordance
with the laws in force, as required under Article 6.2 of the Act, which provides
that: “Remedies are not admissible
against a decision resulting from a regular proceeding.” The interests of the next of kin of Mr. Durand
Ugarte and Mr. Ugarte Rivera were poorly represented, which made any determination
of the merits in this case impossible.
32. The Court will summarize the Commission’s arguments
as follows:
a) The remedies
under domestic laws were duly pursued and exhausted, in accordance with Article
46(1)(a) of the American Convention;
b) The State had
ample opportunity to raise this objection during the proceedings with the
Commission, but did not. The State
was notified of the petition on May 19, 1987, yet only after repeated requests
were made did the State finally, on September 29, 1989, report that judicial
proceedings were under way in the military courts. It was later learned that the proceedings had concluded on July 20,
1989; and
c) Contrary to what
the State contends, the claimants were under no obligation to resort to the
civil courts or to have Mr. Durand Ugarte and Mr. Ugarte Rivera declared presumed
dead under the pertinent provisions of the Civil Code. The Court has held that the only remedies under
domestic law that must be exhausted are those that are adequate and effective;
in the case of the forced disappearance of persons, the applicable remedy
is that of habeas corpus. If this
remedy is pursued and decided without satisfactory result, then the requirements
stipulated Article 46(1)(a) of the Convention have been met.
33. On previous occasions, the Court explained the
purpose of this exception and pointed out that failure to exhaust local remedies
is purely a question of admissibility and that the State that alleges such
failure is required to prove that local remedies remain to be exhausted and
that they are effective.
[2]
34. In a case of forced disappearance, the Court has
repeatedly held that the remedy of habeas corpus “would be the normal means of finding a person presumably
detained by the authorities, of ascertaining whether he is legally detained
and, given the case, of obtaining his liberty.”
[3]
This Court has also held that the remedy of
habeas corpus must be effective; in other
words, it must be capable of producing the result for which it was designed.
[4]
35. The Court considers that these findings apply
with equal force to the case of the disappearance of Mr. Durand Ugarte and
Mr. Ugarte Rivera and that the procedures mentioned by the State (having the
person legally declared missing and/or presumed dead) are intended to serve
other purposes having to do with inheritance; they are not, however, intended
to shed light on a disappearance that constitutes a violation of human rights
and are therefore not suited to achieving the result being sought in the instant
case.
[5]
36. Having studied the facts in the instant case,
the Court has established that the remedy of habeas corpus was used on two occasions:
a) On February 25
and 26, 1986, Mrs. Virginia Ugarte Rivera filed petitions with Lima’s Forty-sixth
Examining Court seeking writs of habeas corpus on behalf of Mr. Nolberto Durand Ugarte and Mr. Gabriel
Pablo Ugarte Rivera, who were detained by police from DIRCOTE on February
14 and 15, respectively, on suspicion of terrorism. According to the Commission, proceedings on the two writs were suspended
when riots broke out at a number of Peruvian prisons on June 18, 1986; and
b) On June 26, 1986,
subsequent to the riots on June 18 of that year, Mrs. Virginia Ugarte Rivera
filed for another writ of habeas corpus
on behalf of Mr. Durand Ugarte and Mr. Ugarte Rivera, this time with Callao’s First Examining Court.
On June 27, 1986, that Court denied the writ.
On July 15, 1986, Callao’s First Police Court upheld the other court’s
ruling. On August 13, 1986, the Supreme Court’s First Criminal Law Chamber
found that the July 15, 1986 ruling was not null and void. On October 28, 1986, the Tribunal of Constitutional
Guarantees ruled that “the decision in question stands; claimant still has
the right to bring another action” (supra, para. 2.d).
37. The
Court notes that the first petitions filed concerned the imprisonment of Mr.
Durand Ugarte and Mr. Ugarte Rivera following their arrest by DIRCOTE police;
the second concerned their disappearance in the wake of the events of June
18, 1986. Given the foregoing, the Court considers that the remedy of habeas corpus filed on June 26, 1986, is
the remedy to be considered to determine whether local remedies were exhausted;
after being heard at several instances, that petition was denied by the Tribunal
of Constitutional Guarantees (supra,
para. 2.d). It has thus been established
that in the instant case, the appropriate domestic remedy was pursued and
exhausted.
38. Moreover, the Court observes that while the Commission
requested information from the State concerning the exhaustion of local remedies
on May 19, 1987, it was not until September 29, 1989 that the State informed
the Commission that the case was being heard in the military courts.
With the Commission, therefore, the State did not argue exhaustion
of local remedies as a preliminary objection and hence cannot do so now (stopple)
to win its argument with this Court.
39. The Court, therefore, dismisses the first preliminary
objection.
VIII
Objection Two
40. The second objection argued by the State concerns
the “matter decided by the Commission.”
41. The State argued that although the Commission
acknowledged that the facts in the instant case were precisely the same as
those in the Neira Alegría et al.
Case, the Commission did not opt to join the two petitions, which was the
procedure provided in Article 40.2 of its Regulations. It further noted that the defendant State in
both cases was the same.
42. The Commission, for its part, argued that although
some of the facts involved in the instant case were the same as those examined
in the Neira Alegría et al. Case,
the two cases concerned different people. The Commission also pointed out that the hypothesis given in Article
40.2 of its Regulations did not obtain in the instant case, as that article
provided that “When two petitions deal with the same facts and persons, they
shall be combined and processed in a single file.” It further argued that had the State wanted
to combine the Durand and Ugarte Case with the Neira Alegría et al. Case, it could have requested joinder
during the proceedings with the Commission. Not having done so, the State was now procedurally prohibited from
objecting to the fact that the two cases were not joined.
43. The Court notes that the hypothesis given in Article
40.2 of the Commission’s Regulations does not obtain in the instant case.
The article alludes to a duality: a) of facts and b) of persons.
“Facts” refers to the behavior or event that is a violation of some
human right. “Persons” has to do with the active and passive
subjects of the violation, and mainly the latter, i.e., the victims.
Whereas the Neira Alegría et al. Case and the Durand and Ugarte Case
concern the same facts -the events at El Frontón-, the obvious difference
between them has to do with the persons named as the alleged victims.
44. The Court therefore dismisses the second preliminary
objection.
Objection Three
45. The
third objection raised by the State concerns res judicata.
46. To argue this objection, the State alleged that
on January 19, 1995, the Court delivered its judgment in the Neira Alegría
et al. Case (No. 10,078) and condemned
the State for the same facts and matter under consideration in this case;
it further argued that by virtue of the principle of non bis in idem, no international organization has jurisdiction to
hear the instant case.
47. The Commission, for its part, pointed out that
this objection was baseless and in no way applicable, since the judgment the
Court delivered in the Neira Alegría et
al. Case was not res judicata for
the claimants in the Durand and Ugarte Case. It added that when a breach of the principle of non bis in idem was asserted, various givens
had to be met, one being that the subjects were the same, which was not true
in this case. It argued that the judgment
delivered in the Neira Alegría et al.
Case did not have effect “ultra partes.”
48. The Court observes that just as every individual
has human rights, so must any violation of those rights be examined on an
equally individual basis. The judgment
delivered in one case will not influence the outcome of other cases when the
persons whose rights have been violated are different, even when the facts
or events that constituted the violation of rights are the same. The instant case involves facts considered in
the Neira Alegría et al. Case, but
violations of different persons’ rights, as the examination of the previous
objection showed (supra, para. 43).
The alleged victims in the instant case are Mr. Durand and Mr. Ugarte,
who were not parties to the Neira Alegría et al. Case.
49. The Court therefore dismisses the third preliminary
objection.
Objection Five
50. The fifth objection raised by the State concerns
the Inter-American Court’s “lack of jurisdiction.”
51. The Court summarizes the State’s arguments for
this objection as follows:
a) It argued that
“the purposes, competence and jurisdiction of the Court” have been vitiated”
because the Court is being used “to adjudicate a compensatory damages suit
without an intervening proceeding wherein it finds breaches of human rights
commitments in a case involving new facts that the Court has not yet heard
and adjudicated”;
b) It added that
“the Inter-American Court is biased on the facts in the instant case.
This supranational body does not have the objectivity and ability to
adjudicate this as a discrete case, since it will feel compelled to adhere
to its earlier finding;” and
c) During the public
hearing it argued that the allegedly aggrieved parties could have availed
themselves of local remedies for a resolution of their claims, but did not
do so.
52. In rebutting this objection the Commission argued
that the filing of a case could neither corrupt nor vitiate the purposes,
competence and jurisdiction of the Court. The arguments used against the preliminary objection
alleging failure to exhaust local remedies were cited. The Commission further maintained that the Court
was not prejudging the same facts. While
the Court had “established precedent in a case similar to but distinct from
case 10,009,” the situation that the instant case involved was “entirely different”
from the one alleged by the State. The Court’s objectivity and discretion were
not influenced by facts similar to those of another case it had already adjudicated.
53. The
Court has already held (supra, para. 43)
that the persons referred to in the application in the instant case are not
the same as those involved in the Neira Alegría et
al. Case.
54. The Court therefore dismisses the fifth preliminary
objection.
IX
Objection Four
55. The fourth preliminary objection brought by the
State concerns the “lapse of the application.”
56. The Court summarizes the State’s arguments as
follows: