corresponding to the intermediate stage established in the Organic Code of Criminal
Procedure; also, the completion of the trial stage, if applicable, as well as [the existence
of] effective remedies, [such as] the appeal against decisions, against final judgments, for
reconsideration, of cassation, [and] for review” 31 (underlining added).
52.
In the Case of Díaz Peña v. Venezuela — which is cited in the Judgment 32 — the
Court indicated that “requests filed by the defense, such as applications for a declaration of
nullity based on failure to comply with legal forms and conditions, or the annulment of an
expertise offered by the Public Prosecution Service, cannot signify that domestic remedies
have been exhausted” 33 and “the appropriate remedy in this regard was the appeal against
the judgment delivered at the conclusion of the trial, without prejudice to the possibility of
filing an objection owing to the excessive duration of the proceedings.” First, the precedent
created in the Case of Díaz Peña represented an isolated precedent that has not been used
subsequently; second, contrary to the said precedent where an application for amparo had
been filed and, therefore, it was found that the appeal had exhausted the domestic
remedies, in the case sub judice, owing to the procedural stage of the criminal proceedings
against Allan Brewer Carías, the requests for annulment that were filed were those that had
to be exhausted in order to rectify the violations that had occurred during the preliminary
investigation stage. Evidently, since the requests for annulment were not processed and,
especially as no decision was taken on them, it was not possible to accede to the remedies
established by Venezuelan law for the intermediate stage and during the oral trial.
53.
Furthermore, it should not be ignored that the State did not, in fact, contest the
effectiveness of the applications for a declaration of nullity, since it merely indicated that
“[t]he remedies corresponding to the intermediate stage established in the Organic Code of
Criminal Procedure; also, the exhaustion of the trial stage, if applicable, as well as [the
existence of] effective remedies, [such as] the appeals against decisions, against final
judgments, for reconsideration, for cassation, [and] for review.” 34 In other words, regarding
the requests for annulment that were filed, the State did not indicate that they were not
appropriate and effective remedies that should be exhausted, but rather, to the contrary,
merely indicated the pending remedies that should be exhausted at later stages.
54.
As we have mentioned – see supra paras. 40 to 44 of this opinion – we consider that
the two requests for annulment filed by the defense counsel of Mr. Brewer Carías were
clearly the appropriate, adequate and effective remedies that had to be exhausted at the
procedural stage that the criminal proceedings had reached at that time, because their
purpose was to remedy the fundamental rights that had been violated during the
investigation stage. Therefore, as neither of the two requests for annulment filed in 2005
have even been processed, it is evident, in our opinion, that from the perspective of
international law the applicable exception in Article 46(2)(c) of the American Convention
has been constituted.
55.
In this regard, the case law of the Inter-American Court has been consistent when
analyzing the application of the exceptions established in Article 42(6) of the Convention. In
some cases, it has rejected the preliminary objection or has determined that questions
relating to the exhaustion and effectiveness of the applicable domestic remedies must be
31
Para. 97 of the Judgment.
32
Para. 89 of the Judgment.
33
Cf. Case of Díaz Peña v. Venezuela. Preliminary objections, merits, reparations and costs. Judgment of
June 26, 2012, Series C No. 244, para. 90 and 124.
34
Para. 17 of the Judgment.
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