19. Article 46(1)(a) of the American Convention indicates that in order for a petition to be admitted, it will be required to show that “the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law.” Article 46(2) establishes that this requirement will not apply when “there has been unwarranted delay in rendering a final judgment under the aforementioned remedies.” The Inter-American Court has interpreted that only those remedies that are adequate and effective for redressing the violations allegedly committed by State agents need be exhausted.3 20. In the instant case, after the events of December 13, 1998, the National Army, the Colombian Air Force, and the Office of the Attorney General initiated and carried out parallel preliminary investigations. The investigation against National Army members was dismissed on December 28, 1998, on the basis that there were apparently no allegations against members of that branch of the Armed Forces. On May 20, 1999 the Military Criminal Investigation Judge at the Apiay Air Base dismissed the investigation of the FAC members on the basis that the acts of the aircraft crew did not fall under any illegal criminal conduct. Nonetheless, on May 30, 2000, the National Human Rights Unit of the Office of the Attorney General opened a judicial investigation and ordered that the crew of the FAC helicopter UH1H be investigated in light of the examinations and expert opinions of the US Federal Bureau of Investigations (FBI), the Technical Investigative Corps of the Office of the Attorney General (CTI), and the Institute of Legal Medicine and Forensic Sciences. It also decided to refer the investigation to the military jurisdiction. Initially, the military criminal investigative judge at the Apiay Base abstained from complying with the National Human Rights Unit of the Office of the Attorney General’s request on the basis that said Unit lacked the competence to make decisions touching military criminal jurisdiction. On August 28, 2000, however, the preliminary investigation was re-opened, and by resolution of June 14, 2001, the Special Military Criminal Investigative Unit summoned the individuals linked to the investigation as allegedly responsible for homicide committed by multiple persons (concurso de homicidio) and bodily injury, after which they were released on bail. 21. The National Human Rights Unit raised afterwards questioned the military court’s jurisdiction over the case alleging that the matter involved the prosecution of a crime against humanity. On October 18, 2001, the Disciplinary Jurisdictional Chamber of the Superior Council of the Judiciary ruled that the FAC Court of Instance 122 was to exercise jurisdiction upon the investigation of the Santo Domingo massacre.4 Nonetheless, on October 31, 2002, the First Review Chamber of the Constitutional Court reviewed the Superior Council of the Judiciary’s decision and concluded that it violated the principle of the natural judge (juez natural), as an integral element of the fundamental right to due process, and referred the case to the civilian justice system.5 The IACHR understands that the Superior Council of the Judiciary abided by this decision, and that the case was remanded to the regular jurisdiction on February 6, 2003. 22. The IACHR notes that the jurisdiction responsible for the judicial clarification of the death of numerous civilians, including children, in the hamlet of Santo Domingo in December 1998 has only recently been defined, after more than four years after the facts. The adequacy of the remedies employed to establish the individual responsibility aside, the delay in the judicial investigation suggests that the victims and their next-of-kin have lacked access to an effective remedy in the terms of Article 46(2) of the American Convention. Therefore, the exception to the requirement of prior exhaustion of domestic remedies before resorting to the interAmerican system, must apply to their claim. 23. In terms of the other remedies to which the State refers in its allegations, the Commission has held earlier that decisions issued in the disciplinary and contentious-administrative jurisdictions fail to meet the requirements established in the Convention. The disciplinary 3 4 I/A Court H.R., Velásquez Rodríguez Case, Judgment of July 29, 1988, para. 64. The Superior Council of the Judiciary considered that the circumstances in which the action of the members of the Colombian Armed Forces acted had to do with “acts of service,” which had to be sanctioned by the military jurisdiction, and “service-related acts,” which by exception are under the purview of the military courts, for by their nature they have to do with the purposes and missions that the Constitution establishes in Article 217 for the Military Forces. 5 First Review Chamber of the Constitutional Court, T-932 Janeth García Guevara v. Consejo Superior de la Judicatura, Disciplinary Jurisdictional Chamber, October 31, 2002. 4