32. The IACHR will examine the various court cases that the petitioner in the instant case cites. First, the petitioner alleges that there has been an unwarranted delay in the criminal cases for unlawful treatment and unlawful deprivation of liberty, in which the petitioner is seeking relief for alleged violations of Articles 5 and 7 of the Convention, and in which no final decision has been rendered thus far. The State, for its part, argues that the remedies under domestic law have not been exhausted precisely because those cases are still in progress. The Commission considers that the more than nine years that have elapsed since those cases were first instituted in 1991, constitutes prima facie an unwarranted delay in those criminal proceedings. The hypothetical set forth in Article 46(1)(a) of the Convention has thus materialized. Hence, the rule set forth in Article 46(1)(a) of the Convention requiring exhaustion of domestic remedies does not apply. 33. Second, the petitioner alleges that the criminal case being prosecuted before Federal Criminal and Correctional Court of First Instance Nº 6, in which the petitioner is charged with several crimes, violates Article 8(1) of the Convention because of the unwarranted delay in rendering a final judgment. The State, for its part, argues that the delay is justified for several reasons and contends that the petitioner has not exhausted the remedy of complaint to challenge the court’s delay in rendering a judgment. While the State does not cite the specific norm or the law that it is asserting, the IACHR assumes it is referring to the remedy of complaint stipulated in Article 514 of the Code of Criminal Procedure (Law 2372 of 1888), which was in effect at the time the events transpired. 21 Even if this is the norm that the State is trying to invoke, it does not specify how this remedy is adequate or how it might have been effective in redressing the violation alleged by the petitioner. The IACHR reiterates that the State alleging failure to exhaust remedies under domestic law bears the burden of proving that the remedies that it believes should have been exhausted are both adequate and effective (see paragraph 30 ut supra). The failure to discharge this burden of proof is sufficient to quash the State’s argument of a failure to exhaust domestic remedies. Hence, the question of whether, according to the principles cited in paragraph 27 ut supra, those remedies are adequate and effective to remedy the violation alleged by the petitioner, is academic and need not be examined. Consequently, the Commission finds that the exception provided for in Article 46(2)(a) of the Convention applies.22 34. The petitioner also alleges that Article 8(3) was violated inasmuch as the statement made to police under torture was taken into consideration in the inquiry investigating his responsibility for various crimes. The petitioner has stated that in the criminal case being prosecuted in Federal Criminal and Correctional Court of First Instance Nº 6, in which the petitioner is charged with various crimes, the petition he filed in December 1998 to retract his confession has still not been decided. The State has remained silent on this point, and has not asserted a failure to exhaust domestic remedies in respect of this right. Hence, it can be assumed to have tacitly waived its objection asserting failure to comply with this requirement. The Commission believes, moreover, that the fact that more than two years have passed since that petition was filed constitutes prima facie an unwarranted delay. Therefore, because the hypothetical situation posited in Article 46(2)(c) is present, the rule set forth in Article 46(1)(a) of the Convention, which requires exhaustion of remedies under domestic law, does not apply. 35. Third, with regard to the right to be brought to trial within a reasonable period of time or to be released, in the petitioner’s original submission to the IACHR he alleged that he had been incarcerated since November 18, 1991, which he argued was an unreasonable period and thus a violation of Article 7(5) of the Convention. In its reply, the State alleged that the petitioner had not petitioned for release in the domestic courts. It also pointed out that for purposes of 21 Article 514 of Argentina’s Code of Criminal Procedure (1888 Law 2372) reads as folllows: "The petition of complaint may be filed: 1) when the judge denies the petitions of appeal and nullification, or only the petition of appeal, which must be done by court order; 2) when the legal time limits are allowed to lapse without the pertinent decision being issued, and provided none of the cases in which the delay causes automatic loss of jurisdiction obtains; or 3) when pending proceedings in the circumstance provided for in Article 442 have not been ordered.” 22 In Report Nº 75/99, Case 11.800, César Cabrejos Bernuy, Peru, decision of May 4, 1999, par. 20, the IACHR pointed out the following: “Inasmuch as the State failed to fulfill its procedural duty to indicate the specific domestic remedies that remained available and effective for the victim to have the aforementioned June 5, 1992 judgment of the Supreme Court of Justice enforced, the Commission finds that this case falls under the exception set forth in Article 46(2)(a) of the Convention.” 10