such, may be waived by a state, even tacitly.2 As the Inter-American Court has indicated, “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.”3[3] The Commission’s case law confirms that, in the absence of a timely response by a state, it is not obliged to consider potential bars to admissibility that might have been raised in this regard.4 Moreover, the Commission wishes to emphasize the obligation of OAS member states, as reflected in the general procedures set forth in Article 48 of the American Convention as well as Articles 18 and 19 of its Statute, to respond in a timely manner to the Commission’s requests for information. 36. In this regard, the Commission observes that by virtue of the delay in presenting its response, the State risked the preclusion that attaches to a presumed waiver. However, taking into consideration that: (a) the State indicated as from May 4, 2000 that its domestic authorities were seized of the subject matter and that it did not waive its right to respond; 5 (b) the State delivered a response to the petition with a copy of the judicial file prior to the preparation of the present report; (c) both parties have had the opportunity to submit further observations during the admissibility stage; and (d), that it is important to ensure that the petition benefits from thorough processing, the Commission will consider the parties’ submissions on this issue. 37. To the extent the petition complains about alleged deficiencies in the criminal process against Santillán, the parties are in agreement that the relevant domestic remedies were exhausted. 6 The parties disagree, however, as to whether the exhaustion of those remedies fulfills the requirements of Article 46 with respect to the petition as a whole. The State maintains that the pendency of the investigation that remains open as of the date of the present report means the requirement has not been satisfied. The petitioners maintain that, notwithstanding the passage of over eight years since the victim’s death, the pending investigation has produced no conviction for the killing, and no advances with respect to clarifying or imposing sanctions for the obstruction of justice they allege, and has thus proven ineffective. 38. When domestic remedies are unavailable as a matter of fact or law, the requirement that they be exhausted is excused. 7 Article 46(2) of the Convention specifies that this exception applies: if the legislation of the state concerned fails to afford due process for the protection of the right allegedly violated; if the party alleging violation has been hindered in his or her access to domestic remedies; or if there has been unwarranted delay in the issuance of a final judgment. Consequently, when a petitioner alleges that he or she is unable to exhaust domestic remedies, Article 31(3) of the Commission's Rules of Procedure establishes that the burden then shifts to the Government to demonstrate which specific domestic remedies continue to offer effective relief for the harm alleged. 39. The remedies the petitioners must exhaust are thus those that are available and effective. As the settled case law of the system affirms, remedies that are not timely are not available or 2See IACtHR, Castillo Páez Case, Preliminary Objections, Judgment of January 30, 1996, para. 40; Loayza Tamayo Case, Preliminary Objections, Judgment of January 31, 1996, para. 40. 3 IACtHR, The Mayagna (Sumo) Awas Tingni Community Case, Preliminary Objections, Judgment of February 1, 2000, para. 53 (citing the decisions listed in note 2, supra). 4 See e.g., IACHR, Report Nº 89/01 (admissibility), case 12.342, Balkissoon Roodal, Trinidad and Tobago, October 10, 2001, para. 29. 5 This is not a situation in which the State declined to file an objection with respect to this requirement in the initial stage of proceedings only to argue nonexhaustion at a later stage, thereby having been presumed to have tacitly waived the objection. See e.g., IACHR, Report Nº 81/01 (admissibility), case 12.228, Alfonso Martín del Campo Dodd, Mexico, October 10, 2001, paras. 15-19. 6 Following the decision at first instance, family members of the victim acting as a party filed extraordinary appeals of unconstitutionality and inapplicability of law before the Supreme Court of the Province, which were denied. They then sought an extraordinary federal appeal, which was granted by the Chamber of Appeals in Criminal and Correctional Matters of Buenos Aires. That appeal was dismissed by the Supreme Court of Justice of the Nation on November 12, 1998, as having been granted in error because it was not challenging the sentence of a superior court. 7 See IACtHR, Exceptions to the Exhaustion of Domestic Remedies (Article 46.1, 46.2.a and 46.2.b American Convention on Human Rights), Advisory Opinion OC-11/90 of August 10, 1990, Ser. A No. 11, para. 17. 7