Venezuela in this case, the exception to the exhaustion of domestic remedies under
Article 46 is complied with.” In other words, what it asks is that, for the petition to be
admitted, the need to previously exhaust the domestic remedies should not be required,
which logically leads to the conclusions that, in point of fact, it is accepting that the
remedies were not exhausted when it was submitted because, if they had been, there
would have been no need to invoke the exception established in the said provision.
The above is supported by the circumstance that the petition did not indicate which of
the causes established in the pertinent norm 20 is invoked as grounds for applying the
requested exception because, if it had done so, as established in the corresponding
provision of the Convention, it would have had to indicate either the inexistence of due
process, or the remedies to which access had been denied or which the petitioner had
been prevented from exhausting or in which there had been a delay in the respective
decision. If access had been denied to the pertinent remedies or if the petitioner had
been prevented from exhausting them, or if there had been a delay in the respective
decision, this should have been specified. But this did not happen; presumably because
they were not filed or no attempt was made to do so.
To the above, must be added that the petition itself indicates “Remedies filed,” namely:
“September 7, 2004: Petition for review of the judicial measure of preventive detention,”
“December 16, 2004, Request for a precautionary measure of liberty, for under 10 years
in accordance with articles invoked by the prosecution,” “March 1, 2005: request for a
precautionary measure of liberty for, under 10 years in accordance with articles invoked
by the prosecution,” “April 14, 2005: Request for transfer to another detention center,”
“June 6, 2005, a precautionary measure again filed,” and “June 10, 2005, request for a
transfer to another detention center for humanitarian reasons, based on the
deterioration in the physical and emotional health of Raúl Díaz.” 21
However, the said procedural actions are not really “remedies,” 22 because they do not
allege the illegality or the arbitrary nature of a judicial decision; they were not requested
to annul, to declare illegal or to invalidate; rather their purpose was to request the lifting
of the measure of deprivation of liberty, the transfer of the person detained to another
center or the realization of medical examinations and treatment and, all this, based on
reasons other than the reasons for a remedy or an appeal. Perhaps, it is for these
reasons that the petition did not refer to the said remedy and to the said measures in
relation to compliance with the requirement of prior exhaustion of domestic remedies
and that, on the other hand, it asked to be exempt from the latter.
Likewise, it must be said that it would be inadmissible to deduce from the mere fact of
the presentation of successive requests, which strictly speaking do not contest a
decision, in other words, that do not constitute real domestic “remedies,” that the latter
have been exhausted, because this could lead to the absurdity that it would be sufficient
to present similar petitions several times in order to comply with the requirement of
prior exhaustion of domestic remedies.
3. The objection argued by the State
Meanwhile it is also a fact of the case that the State, after receiving a copy of the “initial”
or “original petition” in order to formulate its observations – that is during the
admissibility proceeding and before the issue of the Admissibility Report of March 20,
2009 – mentioned the objection concerning prior exhaustion of domestic remedies in its
20
Art. 46(2) of the Convention.
21
The Judgment alludes to three other requests; namely, dated February 21, June 9, and September 19,
2005 (para. 75).
22
Diccionario Jurídico Universitario, Editorial Heliasta, Buenos Aires, 2000, and Diccionario de la Lengua
Española, Real Academia Española, Twenty-second edition..
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