15. The Court is competent to hear this case under the terms of Article 62(3) of the American Convention, given that Guatemala is a State Party to the Convention since May 25, 1978, and accepted the Court’s contentious jurisdiction on March 9, 1987. IV PRELIMINARY OBJECTION (Alleged failure to exhaust domestic remedies) Arguments of the State and observations of the Commission and the representatives 16. The State indicated that, although the Commission’s Admissibility Report applied the exception to the exhaustion of domestic remedies included in Article 46(2)(b) of the Convention,12 in its merits report the Commission changed its view, arguing that no remedies were available under domestic law to denounce the effects of the lack of appropriate treatment and the conditions of incarceration on the alleged victim’s health. The State emphasized that the Commission and the representatives did not claim (in the merits report and in the pleadings and motions brief) that there was any criminal responsibility on the part of a State authority or of another person; rather there was possible negligence or a lack of medical care on the part of State authorities and, consequently, damage occurred. As to the existence of domestic remedies such as civil liability for compensation for damages, the State argued that, under domestic legislation, several procedures were available to the petitioners to claim possible negligence or lack of medical care, which were effective remedies that should have been exhausted: a) Ordinary lawsuit to claim damages, under the terms of Article 1645 of the Civil Code13 and Article 96 of the Code of Civil and Commercial Procedure (Decree Law 107),14 to determine if any damage or harm occurred and, if so, establish reparations to compensate the victim. The State argued that the petitioners (Mrs. Chinchilla’s heirs) could have determined whether the alleged victim´s treatment at the COF was deficient, whether it caused a deterioration in her health or any other claim related to the lack of medical care. By failing to exhaust this remedy, it was not possible to determine whether there was any individual or State responsibility15 and, if so, to establish compensation. As to the effectiveness of that 12 “1. Admission by the Commission of a petition or communication lodged in accordance with Articles 44 or 45 shall be subject to the following requirements: a) that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law; b) that the petition or communication is lodged within a period of six months from the date on which the party alleging violation of his rights was notified of the final judgment; […] 2. The provisions of paragraphs 1.a and 1.b of this Article shall not be applicable when: […] b) the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them.” “Any person who causes damage or prejudice to another person, either intentionally, or through carelessness or negligence, is required to repair it, unless it is proven that the damage or prejudice are caused by inexcusable negligence or guilt on the part of the victim.” 13 14 “Disputes that are not subject to special procedure under this Code shall be settled in an ordinary trial.” According to the State, such a trial would also have served to determine the State’s responsibility, as established in Article 155 of the Constitution of the Republic of Guatemala (“When a dignitary, official or employee of the State, in the exercise of his duties, violates the law to the detriment of private individuals, the State or the State institution which he serves shall be jointly responsible for any damage or prejudice that may have been caused. The civil liability of public officials and employees may be surmised provided that the statute of limitations, which is twenty years, has not expired”) and Article 1665 of the Civil Code (“The State and the municipalities are responsible for 15 8