evidence had not started, [and] a first instance judgment ha[d not been delivered that
would enable him to file a]n appeal against the judgment, against the final judgment, for
annulment, cassation, review, amparo, and [finally,] for constitutional review by the
Constitutional Chamber of the Republic of Venezuela.” 99
81.
Consequently, the Court considers that the State presented the preliminary
objection of failure to exhaust domestic remedies at the appropriate procedural stage in the
proceedings before the Commission, based on the argument that the failure to exhaust
domestic remedies was constituted because the criminal proceedings against Mr. Brewer
Carías had not concluded and there were stages during which it was possible to debate the
alleged irregularities, and specific remedies that could be filed within the framework of the
criminal proceedings.
82.
In its Admissibility Report, the Commission focused its analysis on determining
whether the exceptions to the exhaustion of domestic remedies were admissible. However,
the representatives indicated that sufficient remedies had been exhausted to comply with
the requirement of Article 46(1); consequently, the Court will rule on this argument.
B.3.2. Presentation of appropriate and effective remedies to exhaust the domestic
jurisdiction
83.
Article 46(1)(a) of the American Convention stipulates that, in order to determine
the admissibility of a petition or communication lodged before the Inter-American
Commission in accordance with Articles 44 or 45 of the Convention, it is necessary that the
remedies under domestic law have been pursued and exhausted in accordance with generally
recognized principles of international law. 100 The Court recalls that the rule of prior
exhaustion of domestic remedies was conceived in the interests of the State, because it
seeks to exempt the latter from responding before an international organ for acts attributed
to it before it has had the opportunity to remedy them by its own means. 101 This signifies
that such remedies should not only exist formally, but they must also be adequate and
effective owing to the exceptions established in Article 46(2) of the Convention. 102
84.
When the State alleges the failure to exhaust domestic remedies, it must at the
same time describe the remedies that should be exhausted and their effectiveness. Based
on the burden of proof applicable to this matter, the State that argues the failure to exhaust
domestic remedies must indicate the domestic remedies that should be exhausted and
provide evidence of their effectiveness. In this regard, the Court reiterates that, for more
than two decades, its interpretation of Article 46(1)(a) of the Convention has been in
keeping with international law 103 and that, pursuant to its case law 104 and international
99
The State’s brief of August 31, 2009, before the Commission (annexes to the brief with observations of
the presumed victim’s representatives on the preliminary objection filed by the State, tome 1, folio 21873).
100
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections, para. 85, and Case of Liakat Ali
Alibux v. Suriname, para. 14.
101
Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 61,
and Case of Liakat Ali Alibux v. Suriname, para. 15.
102
Cf. Case of Velásquez Rodríguez v. Honduras. Merits, para. 63, and Case of Liakat Ali Alibux v. Suriname,
para. 15.
103
Cf. Case of Reverón Trujillo v. Venezuela. Preliminary objection, merits, reparations and costs. Judgment
of June 30, 2009. Series C No. 197, para. 22, and Case of Mémoli v. Argentina. Preliminary objections, merits,
reparations and costs. Judgment of August 22, 2013. Series C No. 265, para. 47.
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