The Mayagna (Sumo) Awas Tingni Community Case, Judgment on the Preliminary Objections of February 1, 2000, Inter-Am. Ct. H.R. (Ser. C) No. 66 (2000).
In
the Mayagna (Sumo) Awas Tingni Community case (hereinafter “the Community”
or “the Mayagna Community”),
The
Inter-American Court of Human Rights (hereinafter “the Court” or “the Inter-American
Court”), composed of the following judges:
Antônio A. Cançado Trindade,
President
Máximo Pacheco Gómez, Vice President
Hernán Salgado Pesantes, Judge
Oliver Jackman, Judge
Alirio Abreu Burelli, Judge
Sergio García Ramírez, Judge
Carlos Vicente de Roux Rengifo, Judge and
Alejandro Montiel Argüello, Judge ad hoc;
also
present,
Manuel E. Ventura Robles, Secretary
and
Renzo Pomi, Deputy Secretary
pursuant
to Article 36.6 of its Rules of Procedure (hereinafter “the Rules of Procedure”),
delivers the following judgment on the preliminary objections filed by the
State of Nicaragua (hereinafter “the State” or “Nicaragua”).
I
Introduction of the Case
1. This case was submitted to the Court
by the Inter-American Commission on Human Rights (hereinafter “the Commission”
or “the Inter-American Commission”) on June 4, 1998. It originated from petition No. 11,577, received by the Secretariat
of the Commission on October 2, 1995.
II
Facts set forth in the Application
2. In the following paragraphs, the Court
summarizes the facts alleged by the Commission in the application brief that
are relevant for considering the preliminary objection:
a) The Mayagna Awas Tingni Community is an
indigenous Mayagna or Sumo community of the Atlantic or Caribbean coast of
Nicaragua. The Community has a population
of approximately 630 individuals, in 142 families, and its principal village
is on the Wawa River, in the municipality of Waspan, in the North Atlatntic
Autonomous Region (RAAN);
b) members of the Community communicate among
themselves almost exclusively in the Mayagna language, although most of them
are also able to speak Spanish;
c) the Community functions under a traditional
leadership structure, based on custom, which is recognized in Articles 89
and 180 of the Nicaraguan Constitution and 11(4) of the Statute of Autonomy
of the Regions of the Atlantic Coast of Nicaragua, Law No. 28 of 1987;
d) the leadership of the Community consists
of a Communal Administrative Council, members of which are elected by the
Community and answer directly to it. The
Community subsists principally on family and communal agriculture, the collection
of medicinal plants and fruits, hunting and fishing; these activities are
carried out within a specific territorial area, in accordance with a traditional
system of land ownership that is related to the Community’s socio-political
organization;
e) on June 28, 1995, the Board of Directors
of the RAAN Regional Council issued an administrative directive, in which
“it acknowledge[d an] agreement signed by the Autonomous Regional Government
and the company Solcarsa S.A.” to “initiate logging operations [...] in the
Wakambay area;”
f) on
July 11, 1995, the legal representative of the Community sent a letter to
the Ministry of the Environment and Natural Resources (MARENA) in which the
Community protested the possibility of a concession on its lands being granted
to Sol del Caribe S.A. (SOLCARSA), without it previously having been consulted;
g) on September 11, 1995, the Community filed
a first application for amparo against MARENA before the Matagalpa Appeals
Tribunal, in order to try and detain the granting of the concession.
This recourse was declared inadmissible on September 19, 1995, as it
had not been filed within the legal time limit, a period of 30 days from the
time the Community learned that the concession was being processed.
Two days later, the Community filed an application for amparo before
the Supreme Court of Justice under the de
facto procedure, requesting a review of the decision of the Appeals Tribunal,
but the Supreme Court did not pronounce judgment until a year and a half later,
on February 27, 1997, when it dismissed the application as time-barred;
h) on March 13, 1996, the State, through
MARENA, granted a 30-year concession to SOLCARSA to exploit approximately
62,000 hectares of tropical forest in the Atlantic coast region on land claimed
by the Community;
i) on March 20, 1996, the MARENA lawyers
informed the Community’s lawyers that the concession granted to SOLCARSA had
been approved by the RAAN Regional Council, that the indigenous communities
of the region as such did not have any independent legal existence or status,
but were represented by the Regional Council and that, as the latter had approved
the concession, it was valid;
j) on March 21, 1996, the Community leaders
submitted a request to the plenary session of the Regional Council for assistance
to demarcate their ancestral lands and detain the advance of the concession
granted without the consent of the communities;
k) on March 22, 1996, the Board of Directors
of the Regional Council indicated to the Community’s lawyers that the resolution
that it had adopted on June 25 (sic)
was subject to ratification by the plenary session of the Regional Council,
that this ratification had not taken place and that the Board of Directors
itself had not granted, nor would it grant, the consent required for a concession;
l) on March 29, 1996, two members of the
RAAN Regional Council filed an application for amparo against the concession
to SOLCARSA before the Supreme Court. This
action was initiated on the grounds that the concession was not valid because
it had not been approved by the plenary session of the Regional Council, as
required by Article 181 of the Nicaraguan Constitution. On February 27, 1997,
the Supreme Court of Justice pronounced itself in favor of this application
and declared the concession unconstitutional;
m) subsequently, State officials took steps
to submit the concession to the approval of the RAAN Regional Council. On October 8, 1997, the majority of the Council
voted in favor of the concession. Due
to this, on November 7, 1997, the Community filed a second application for
amparo, this time against “the members” of the Board of Directors who had
voted in favor of the concession initially and “the members” who, on October
8, 1997, formed the majority of the Regional Council and approved the said
concession. In this recourse, the
Community denounced the said members for having approved the concession without
having considered the rights of the indigenous communities, although it had
made a formal request to the Regional Council in this respect;
n) on November 12, 1997, the Matagalpa Appeals
Tribunal admitted the second application for amparo, ordered that the respondents
be notified that they should submit their reports to the Supreme Court of
Justice and rejected the Community’s request that the concession to SOLACARSA
be suspended immediately;
o) on February 12, 1998, the Supreme Court
of Justice of Nicaragua issued an order that the judgment of February, 1997,
in favor of the members of the RAAN Regional Council who had filed the above-mentioned
application for amparo(supra l),
should be executed.
III
Proceeding before the Commission
3. On October 2, 1995, the Secretariat of
the Commission received a petition lodged by Jaime Castillo Felipe, principal
leader of the Community, in his own name and on behalf of the Community
4. On December 3, 1995, the Commission received
a supplementary request regarding precautionary measures, because the State
was about to grant SOLCARSA the concession to commence logging on communal
lands.
5. On January 19, 1996, the petitioners requested
the Commission to grant them a hearing during its 91st Session,
but the Commission informed them that it was unable to comply with their request.
6. On February 5, 1996, the Commission began
processing the case and sent the pertinent parts of the petition to the State,
requesting that it provide the corresponding information within ninety days.
7. On March 13, 1996, the Community submitted
two newspaper articles to the Commission that “indicated the granting of [the]
concession” to SOLCARSA and a letter from the Ministry of the Environment
and Natural Resources to the President of SOLCARSA informing him that “his
request for a logging concession was being processed, all that was lacking
was the signature of the concession contract,” and stating that the Community’s
protests were the principal obstacle.
8. In a communication of March 28, 1996,
the petitioners sent a draft memorandum of understanding to the Commission
in order to settle the case; this document had been submitted to the Ministers
for Foreign Affairs and of the Environment and Natural Resources.
9. On April 17, 1996, the petitioners forwarded
a document in which other indigenous communities of the RAAN and the Indigenous
Movement of the South Atlantic Autonomous Region expressed their support for
the petition submitted to the Commission.
10. On May 3, 1996, an informal meeting was
held between the parties and the Commission in order to reach a friendly settlement
in the case. On May 6, 1996, the Commission
placed itself at the disposal of the parties to achieve this objective and
gave them thirty days to forward their corresponding reply. On May 8 and 20, 1996, the petitioners and
the State, respectively, accepted this proposal.
11. On June 20, 1996, a second meeting between
the parties and the Commission was held. At this meeting, Nicaragua rejected the settlement agreement submitted
by the petitioners. The petitioners,
in turn, requested that the State submit a procedure to establish the limits
of the Community’s lands and, while that was happening, to suspend the concession
granted to SOLCARSA. They advised
that the construction of roads towards the Community’s lands had been commenced
and proposed that the Commission should visit Nicaragua to talk to the parties.
12. On October 3, 1996, a third meeting was
held between the parties and the Commission.
At this meeting, the petitioners requested the State not grant further
concessions in the area, initiate the process of demarcating the Community’s
lands and differentiate the latter from State lands. The State presented probative documents and announced the creation
of the National Demarcation Commission, inviting the petitioners to take part
in it.
13. On March 5, 1997, the petitioners reiterated
to the Commission their request for precautionary measures, faced with the
threat of the commencement of logging operations on indigenous lands and,
on March 12, 1997, the Commission requested that the State provide it with
information about this within fifteen days.
On March 20, 1997, Nicaragua requested that the Commission allow it
30 days to respond to the request, and this was conceded.
14. On April 3, 1997, the petitioners informed
the Commission about the judgment of the Supreme Court of Justice of Nicaragua
of February 27, 1997, which decided on the application for amparo filed by
members of the RAAN Regional Council and declared that the concession granted
by MARENA was unconstitutional, since it did not meet the requirement of Article
181 of the Nicaraguan Constitution. They
also informed the Commission that the State had not suspended logging activities
under the concession.
15. On April 23, 1997, the State requested that
the Commission reject the precautionary measures requested by the petitioners
due to the delivery of the judgment of the Supreme Court of Justice, which
it agreed to comply with. However,
on June 11 that year, the petitioners informed the Commission that, despite
the judgment of the Supreme Court of Justice, the State and SOLCARSA continued
to act as though the concession was valid.
16. In a hearing before the Commission on October
8, 1997, the petitioners indicated that logging operations were continuing
on the Community’s lands and requested that the Commission observe the situation
in situ. On October 27 that year, three days before
the Commission’s planned visit to Nicaragua, the State informed it that the
visit was not necessary because it was preparing a brief with relevant additional
information.
17. On October 31, 1997, the Commission requested
that the State adopt precautionary measures designed to suspend the concession
granted to SOLCARSA and established a period of 30 days for the State to inform
the Commission about them. The same
day, the Commission reiterated to the State that it should reply within 30
days to the Commission’s request of February 5, 1996, when the process was
opened.
18. On November 5, 1997, the State requested
that the Commission close the case as the RAAN Regional Council had ratified
the approval of the concession to SOLCARSA, correcting the error of form committed
and, consequently, the concession was now valid.
19. On November 17, 1997, the petitioners declared
that the central element of the petition was Nicaragua’s failure to protect
the Community’s rights over its ancestral lands and that this situation still
persisted. Furthermore, with regard
to the ratification by the RAAN Regional Council, they indicated that this
Council was part of the State’s politico-administrative structure and had
acted without taking into account the Community’s territorial rights. Lastly, they requested that the Commission
proceed to issue a report in accordance with Article 50 of the Convention.
20. On December 4, 1997, the State sent a communication
to the Commission indicating that the petitioners had filed an application
for amparo on November 7, 1997, requesting that the Matagalpa Appeals Tribunal
declare the concession to SOLCARSA null, so that domestic remedies had not
been exhausted, and it invoked the application of Articles 46 of the Convention
and 37 of the Commission’s Regulations. The State reiterated this position on December
19, 1997.
21. On March 2, 1998, the State informed the
Commission that, on January 22, 1998, the petitioners had presented a request
before the Supreme Court of Justice for the execution of the judgment of February
27, 1997, delivered by that Court. On
this occasion, the State reiterated its position that domestic remedies had
not been exhausted due to the applications for amparo filed by the Community
and requested that the Commission abstain from continuing to process the case.
22. On March 3, 1998, the Inter-American Commission
approved Report No. 27/98, which was forwarded to the State on March 6 that
year. In this Report, the Commission
concluded:
141. Based on the acts and omissions examined, (...) that the State
of Nicaragua has not complied with its obligations under the American Convention
on Human Rights. The State of Nicaragua
has not demarcated the communal lands of the Awas Tingni Community or other
indigenous communities, nor has it taken effective measures to ensure the
property rights of the Community on its lands. This omission by the State constitutes a violation of Articles 1,
2 and 21 of the Convention, which together establish the right to the said
effective measures. Articles 1 and
2 oblige States to take the necessary measures to give effect to the rights
contained in the Convention.
142. The State of Nicaragua is actively responsible for violations
of the right to property, embodied in Article 21 of the Convention, by granting
a concession to the company SOLCARSA to carry out road construction work and
logging exploitation on the Awas Tingni lands, without the consent of the
Awas Tingni Community.
143. [...] the State of Nicaragua did not guarantee an effective
remedy to respond to the claims of the Awas Tingni Community regarding their
rights to lands and natural resources, pursuant to Article 25 of the Convention.
Moreover,
the Commission recommended that Nicaragua:
a. establish a procedure in its legal system, acceptable to
the indigenous communities involved, that [would] result in the rapid official
recognition and demarcation of the Awas Tingni territory and the territories
of other communities of the Atlantic coast;
b. suspend as soon as possible, all activity related to the
logging concession within the Awas Tingni communal lands granted to SOLCARSA
by the State, until the matter of the ownership of the land, which affects
the indigenous communities, [has been] resolved, or a specific agreement [has
been] reached between the State and the Awas Tingni Community; and
c. initiate discussions with the Awas Tingni Community within
one month in order to determine the circumstances under which an agreement
[could] be reached between the State and the Awas Tingni Community.
When
it forwarded this report to the State, the Commission granted it sixty days
to transmit information on the measures that it had adopted in order to comply
with these recommendations.
23. On May 7, 1998, the Commission received
the State’s reply dated the previous day.
The Commission indicated that, although this reply had been presented
after the time limit had elapsed, it would examine it in order to add it to
the record of the case. With regard
to the recommendations of the Inter-American Commission, Nicaragua stated
that:
a) In order to comply with the recommendations of the IACHR
with regard to establishing a legal procedure acceptable to the indigenous
communities involved, which [would] result in the demarcation and official
recognition of the lands of the Awas Tingni and other communities of the Atlantic
coast, the Government of Nicaragua has a National Commission for the demarcation
of the lands of the Indigenous Communities of the Atlantic Coast.
To the same end, a draft Law on
Indigenous Communal Property [has been] prepared, with three elements:
1. To make the necessary provisions for accrediting the indigenous
communities and their authorities.
2. To proceed to demarcate the properties and provide title
documents.
3. Settlement of the dispute.
The draft law endeavors to find
a legal solution to the property of indigenous people or ethnic minorities. The project will be consulted with civil society
and, once there is a consensus, it will be submitted to the National Assembly
for discussion and subsequent approval. The estimated time for the whole procedure is about three months
from today’s date.
b) Regarding the recommendation to suspend all activity relating
to the logging concession granted to SOLCARSA and to comply with the judgment
of the Supreme Court of Justice, the Government of Nicaragua cancelled this
concession on February 16, 1998. On
that day, it notified Michael Kang, General Manager of SOLCARSA[,] that, as
of that date, the concession was null and void. He was also advised that he
should order the suspension of all activities and warned that, to the contrary,
he would be violating Article 167 of the Constitution and be liable to having
either a criminal or civil suit brought against him.
c) Regarding the recommendation to initiate discussions with
the Awas Tingni [C]ommunity, the Government of Nicaragua is firmly committed
to finding a global solution for all the indigenous communities of the [A]tlantic
[C]oast, within the framework of the [L]aw on [C]ommunal [P]roperty, and to
this end, there will be extensive consultations with these communities.
As
for the conclusions set forth in Report No. 27/98, the Nicaraguan State manifested
its acknowledgement of the rights of the indigenous communities embodied in
its Constitution and legislation. Moreover,
it indicated that
the [G]overnment of Nicaragua has
faithfully complied with the previous legal provisions and, consequently,
it has acted in accordance with the national legal system and the provisions
of the rules and procedures of the [American] Convention [on] Human Rights. Likewise, the Community of Awas Tingni exercised
their rights as set forth in the law and had access to the legal remedies
that the law provides.
Lastly,
Nicaragua requested the Inter-American Commission to close the instant case.
24. On May 28, 1998, the Commission decided
to submit the case to the Court.
IV
Proceeding before the Court
25. On June 4, 1998, the Commission submitted
the application to the Court, in which it invoked Articles 50 and 51 of the
American Convention on Human Rights (hereinafter “the Convention” or “the
Inter-American Convention”) and 32 ff. of the Rules of Procedure of the Court. The Commission submitted this case for the
Court to rule on whether the following articles of the Convention had been
violated: 1 (Obligation to Respect Rights), 2 (Domestic Legal Effects), 21
(Right to Property) and 25 (Right to Judicial Protection).
26. Furthermore, the Commission requested that
the Court declare that the State is obliged to establish and apply a legal
procedure for demarcating the lands of the Community, to abstain from granting
concessions on these until the issue of their ownership has been resolved,
and to compensate the Community. Lastly,
the Commission requested that Nicaragua be condemned to pay the costs and
expenses of this proceeding.
27. The Commission appointed Claudio Grossman
and Helio Bicudo as its Delegates, David Padilla, Hernando Valencia and Bertha
Santoscoy as its Advisors, and James Anaya, Todd Crider and María Luisa Acosta
as the Assistants.
28. On June 19, 1998, the Secretariat of the
Court (hereinafter “the Secretariat”) provided for the preliminary examination
of the application by the President of the Court (hereinafter “the President”),
notified the State of the application, and informed the latter of the period
within which it should respond to this. It
also invited the State to appoint a Judge ad hoc.
29. On July 2, 1998, Nicaragua appointed Alejandro
Montiel Argüello as Judge ad hoc
and Edmundo Castillo Salazar as Agent.
30. The same day, the Commission submitted to
the Court the copies of the annexes to the application requested by the Secretariat
and the addresses and powers of attorney of the representatives of the victims,
with the exception of the power of attorney of Todd Crider, which was forwarded
on July 24, 1998.
31. On August 18, 1998, the State attested the
appointment of Rosenaldo J. Castro S. and Bertha Marina Argüello as its legal
advisors.
32. On August 19, 1998, Nicaragua filed the
preliminary objection that domestic remedies had not been exhausted pursuant
to Articles 46 and 47 of the Convention and requested the Court to declare
the application inadmissible.
33. On
September 25, 1998, the Commission submitted its observations on the preliminary
objection filed by the State.
34. On October 19, 1998, the State forwarded
its reply to the application.
35. On February 19, 1999, the President invited
the State and the Inter-American Commission to a public hearing, to be held
on May 31, 1999, at the seat of the Court, to hear their arguments on the
preliminary objection filed by the former.
36. On March 15, 1999, the Secretariat requested
that the State send some documents that were missing from its briefs on the
preliminary objection and the reply to the application; they were submitted
on May 26 that year.
37. The public hearing on preliminary objections
was held at the seat of the Court on May 31, 1999.
There
appeared
for
the Republic of Nicaragua:
Edmundo
Castillo Salazar, Agent;
Rosenaldo
Castro, Advisor; and
Bertha
Marina Argüello, Advisor.
for
the Inter-American Commission on Human Rights
Claudio
Grossman, Delegate
Verónica
Gómez, Lawyer;
James
Anaya, Assistant;
María
Luisa Acosta, Assistant; and
Todd
Crider, Assistant.
V
Competence
38. Nicaragua has been a State Party to the
American Convention since September 25, 1979, and recognized the contentious
jurisdiction of the Court on February 12, 1991. Therefore, under the provisions of Article 62.3 of the Convention,
the Court is competent to hear the instant case.
VI
Preliminary Objection: failure to exhaust domestic
remedies
39. The Court proceeds to consider the objection
that domestic remedies had not been exhausted, filed by Nicaragua in the case
sub judice.
40. In this regard, the State has alleged that
the Community failed to exhaust existing domestic remedies because it:
a) incurred in a series of omissions and
defective procedural actions when contesting the logging concession granted
by the Government to the company SOLCARSA; it did not use all the existing
jurisdictional remedies and its defective procedural action had a negative
influence on the provision of a prompt judicial remedy; and
b) made no request for the award of land
titles to the competent authorities of the Central Administration, but addressed
itself to third party institutions that lacked competence in this area.
41. With regard to its first argument, the State
declared that, despite having had administrative and constitutional remedies
at its disposal in order to contest the concession, the Community failed to
used them at the appropriate procedural moment, thereby acting after the statutory
time limit had passed or allowing their right to be precluded.
42. It also added that the Community made an
“unclear” petition, thereby failing to comply with “the principles of substantiation
of the petition and the violated regulations, contained in the Law of Amparo,”
and that it failed to request the suspension of the contested administrative
act when filing the application for amparo by the de facto procedure.
43. Lastly, it indicated that the Community
failed to use all the existing remedies since it did not file an appeal against
the logging concession on the grounds of unconstitutionality, and this was
filed by third parties; this did not alter the fact that the Community had
not exhausted the existing jurisdictional remedies under the national legal
system. In this respect, Nicaragua
indicated that the Community’s attitude had a negative influence on the provision
of a legal remedy within a reasonable period.
44. Regarding its second argument, Nicaragua
indicated that the Community incurred in a series of omissions and negligent
actions since it did not address a request for the award of land titles to
the competent authority, that is, the Nicaraguan Agrarian Reform Institute
(INRA), but, instead, addressed a petition to an organ that did not have competence
in the matter, the RAAN Regional Council.
Nicaragua also declared that there was no formal petition from the
Community for the award of land titles in the files of the National Demarcation
Commission, the auxiliary administrative body created to streamline the demarcation
process.
45. In its observations of September 25, 1998,
the Inter-American Commission stated that the preliminary objection filed
by the State should be declared inadmissible, since the State had acknowledged
its responsibility when, in various communications of May 1998, it indicated
the way in which it was complying with the Commission’s recommendations and
when it subsequently requested a 12-month postponement in order to provide
information on the measures that it had adopted to implement the said recommendations.
46. The Commission also indicated that the objection
that domestic remedies had not been exhausted should be declared inadmissible,
because Nicaragua had waived this objection tacitly by not presenting it opportunely
during the proceeding before the Commission, by assuming inconsistent attitudes
with regard to its legal grounds and by failing to prove that there were effective
and adequate domestic remedies that had not been exhausted.
Furthermore, the Commission stated that the legal grounds used by the
State were arguments related, in part, to the merits of the application and
not specifically to the objection filed.
Therefore, the Court should not declare the application inadmissible.
47. With regard to the measures designed to
award title to their lands, the Commission indicated that representatives
of the Community had visited INRA officials on several occasions to this end,
but the officials had told them that the Institute was not competent to resolve
a matter of communal lands. The Commission
also stated that MARENA had informed the Community that there was a vacuum
in the pertinent administrative and legal framework. Lastly, the Commission stated that when the
Community had presented a request to the RAAN Regional Council, the latter
had received it and recognized its competence in that respect.
*
* *
48. The Court will proceed to examine the timing of the
State’s filing of the objection that domestic remedies had not been exhausted.
49. In this regard, Nicaragua declared that it had repeatedly
raised the objection that domestic remedies had not been exhausted before
the Commission, “since the very beginning” of the proceeding before the Commission,
specifically, in its reply to the
memorandum of understanding presented by the petitioners within the framework
of the friendly settlement and, in repeated
briefs while the case was being processed, including those of November 5,
December 4 and 19, 1997, February 14 and March 2, 1998. Further still, this position was manifested
by Government representatives in hearings held at the seat of the Commission
on March 4, 1997, and subsequently, in October the same year.
Thus,
Nicaragua stated that these communications demonstrated that, at no time,
had it renounced, either tacitly or expressly, its right to assert this objection.
50. On this
aspect, the Commission indicated that, according to the principle of estoppel,
the State was impeded from alleging the objection of failure to exhaust domestic
resources, because after a long process of meetings with the Commission and
the Community “it [was] the first time in the history of the case that the
State [had] presented the argument that domestic remedies had not been exhausted
due to a procedural error by the victims”. Furthermore, it indicated that “[s]ubsequent
communications from the State arguing failure to exhaust domestic remedies
did not reach the Commission until November 1997, and did not refer to the
Community’s first application for amparo, but rather to the second application
and to applications for amparo filed by other parties opposed to granting
the concession to SOLCARSA.” It added
that the State could not file an objection that domestic remedies had not
been exhausted after it had taken part in the friendly settlement procedure
during two years.
51. In addition, the Inter-American Commission
stated that, even if the State might have avoided the tacit waiver due to
silence, its reply to the Commission’s Report No. 37/98 of May 7, 1998, did
not pose any objection, but rather was dedicated to responding to the Commission’s
recommendations, thereby acknowledging its responsibility. In this way, the Commission concluded that
the State’s conduct constituted a waiver of any objection that domestic remedies
had not been exhausted, which it might have alleged previously.
*
* *
52. Article 46.1.a of the Convention establishes that,
in order for a petition or communication presented to the Inter-American Commission
pursuant to Articles 44 or 45 of the Convention to be admissible, it is necessary
that the remedies under domestic law have been pursued and exhausted.
The Court considers it necessary to emphasize that, with regard to
the matter referred to in the objection filed by the State, it has established
criteria that should be taken into consideration in this case.
53. Indeed,
of the generally recognized principles of international law referred to in
the rule on exhaustion of domestic remedies, the foremost is that the State
defendant may expressly or tacitly waive invocation of this rule (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. Series C No. 25, para. 40). Secondly, in order to be timely, the
objection that domestic remedies have not been exhausted should be raised
during the first stages of the proceeding or, to the contrary, it will be
presumed that the interested State has waived its use tacitly (Castillo Páez case, Preliminary Objections.
Ibid, para. 40; Loayza Tamayo case, Preliminary Objections. Ibid,
para. 40; Castillo Petruzzi case, Preliminary
Objections Judgment of September
4, 1998. Series C No. 41, para. 56). Thirdly, the State that alleges non-exhaustion must indicate which
domestic remedies should be exhausted and provide evidence of their effectiveness
(Castillo Páez case, Preliminary Objections.
Ibid, para. 40; Loayza
Tamayo case, Preliminary Objections. Ibid,
para. 40; Cantoral Benavides case, Preliminary Objections.
Judgment of September 3, 1998. Series
C No. 40, para. 31; Durand and Ugarte
case, Preliminary Objections. Judgment of May 28, 1999. Series C No. 50, para. 33).
54. According
to the criteria mentioned previously, the Court considers that, in order to
validly oppose the admissibility of the petition submitted to the Inter-American
Commission on October 2, 1995, the State should have expressly and in
a timely manner invoked the rule that domestic remedies should be exhausted.
55. Although it is true that the briefs presented
by Nicaragua to the Commission while the petition was being processed indicated,
among other information, the progress of the proceedings before the domestic
courts and also the State’s willingness to comply with the judgments they
delivered, it is evident that the State did not clearly file the objection
that domestic remedies had not been exhausted during the first stages of the
proceeding before the Commission. There
is no record in the file that this objection had been invoked expressly until
the end of 1997, specifically, in a note from the State of December 4, 1997,
which was received by the Commission the following day.
56. From the
foregoing, it is concluded that the State tacitly waived filing the objection
that domestic remedies had not been exhausted because it did not allege this
in a timely manner before the Commission.
57. The Court, in turn, observes that, in its
brief of May 6, 1998, replying to the Inter-American Commission’s Report No.
27/98, Nicaragua explained how it was “comply[ing] with the recommendations
[of the Commission]” and once again did not allege the failure to exhaust
domestic remedies, so that it is impeded from filing this objection now (estoppel).
58. For
the above reasons, the Court dismisses
the objection filed by Nicaragua.
59. Since
the objection filed by the State has been dismissed because it was presented
after the statutory time limit had passed, the Court does not consider it
necessary to rule on the issue of the effectiveness of the domestic remedies
mentioned in the objection.
VII
60. Therefore,
The Court
decides
unanimously,
1. To dismiss the preliminary objection filed
by the State of Nicaragua.
2. To continue hearing the instant case.
Judge
Alejandro Montiel Argüello informed the Court of his Concurring Opinion, which
is attached to this Judgment.
Done
in Spanish and in English, the Spanish text being authentic, at San José,
Costa Rica, this first day of February, 2000.
Antônio A. Cançado Trindade
President
Máximo
Pacheco Gómez
Hernán Salgado Pesantes
Oliver
Jackman
Alirio Abreu Burelli
Sergio
García Ramírez Carlos Vicente de Roux Rengifo
Alejandro Montiel Argüello
Judge ad hoc
Manuel E. Ventura Robles
Secretary
So
ordered,
Antônio A. Cançado Trindade
President
Manuel
E. Ventura Robles
Secretary