law. The objective of this requirement is to enable the national authorities to learn of the alleged violation of a protected right and, where appropriate, to have the opportunity to resolve it before it is heard by an international body. The requirement of prior exhaustion applies when adequate and effective remedies are actually available in the domestic system to remedy the alleged violation of human rights. In this regard, Article 46(2) specifies that the requirement does not apply when (a) the domestic legislation does not have due process of law for protecting the right in question; (b) the alleged victim did not have access to domestic remedies; or (c) whether there is unwarranted delay in the decision on said remedies. 44. On a preliminary basis, the IACHR observes that the precedents established by the InterAmerican Commission and the Inter-American Court indicate that whenever a crime is committed that is subject to prosecution at the initiative of the authorities, the State has the obligation to promote and advance the criminal proceeding, and that in those cases it is the suitable means for clarifying the facts, prosecuting those responsible, and making possible other forms of reparation. In the instant case, the IACHR takes note on a preliminary basis that although the domestic legislation authorizes the injured person to come forward as a “civilian plaintiff” (“actor civil”) when it comes to invoking remedies in the context of a criminal investigation, this does not relieve the State of its responsibility to drive the criminal investigation in cases that should be prosecuted at the initiative of the authorities, as in the instant case. 45. As appears from the record, on February 27, 2008 Luis Alberto Rojas Marín filed the complaint for the acts alleged to have occurred with the Police Station of Casagrande. Two days later the forensic medical exam was conducted to determine the physical condition of the alleged victim. On March 24, 2008, the Public Ministry ordered an investigation opened into aggravated sexual violence and abuse of authority. On May 5, 2008, the alleged victim requested that the investigation be expanded to include torture, which was denied by the prosecutorial authority on June 16, 2008, indicating that there had not been criminal intent or proof that the act had been committed with one of the purposes described in Article 321 of the Criminal Code in relation to the elements that constitute torture. Accordingly, the prosecutorial authority held that “while there are sufficient and reasonable indicia that the accused have caused lesions to the injured person Luis Alberto Rojas Marín and the [police agent] introduced a rubber baton into his rectum with the aid of his co-accused … it is also true that there is no evidence that … they acted with criminal intent, i.e. with the knowledge or and will to commit the crime investigated … and much less than they have caused those lesions with the intent of obtaining from the victim a confession or to punish him … intimidate him, or coerce him….”2 46. The alleged victim appealed this decision, arguing that he was tortured as punishment due to his sexual orientation. The alleged victim asked the prosecutorial authority to investigate the facts alleged as torture, indicating, in light of international standards, that it had not only been a situation of abuse of authority and sexual violence. This appeal was declared to be unfounded by the prosecutorial authority on August 28, 2008, and upheld by the superior prosecutorial authority on October 15, 2008. The petitioner argues the ineffectiveness of the investigation in these terms. 47. In relation to the investigation into aggravated sexual violence and abuse of authority, on October 21, 2008, the prosecutorial authority asked the judge to close the investigation by declaring the charges dismissed; Luis Alberto Rojas Marín opposed this request. On January 9, 2009, the Judge of Criminal Investigation of Ascope, Superior Court of Justice of La Libertad issued an order of dismissal, on considering that the situations provided for in sections (a) and (d) of Article 344(2) of the Code of Criminal Procedure applied, that is, that the act cannot be attributed to the police agents, that there is no reasonable possibility of including new information in the investigation, and that there are not elements of conviction sufficient to request the prosecution in relation to the three accused and the crimes investigated. The alleged victim, appearing as “civil plaintiff” in the criminal proceeding, appealed this decision; the appeal was rejected as it was filed four days after the period established by the domestic provisions. Public Ministry, Second Office of the Provincial Prosecutor of Ascope, “Disposición de No Ha Lugar Ampliación Investigación Preparatoria,” Case No. 113-2008-MP/2º DFPPC-A, June 16, 2008, Ascope. Annex to the petitioners’ brief, received April 22, 2009. 2 8