3 B. Position of the State 15. The State alleges that the petitioners have not exhausted the domestic remedies given that the criminal complaint filed in 2006 is still pending. It also alleges that there is a series of remedies such as appeal, cassation, and constitutional review that must be exhausted before making application to an international body. It also maintains that Article 27 of the National Constitution establishes the appeal for constitutional protection as a mechanism available to everyone to guarantee access to judicial protection for the enjoyment and exercise of their constitutional rights. 16. The State asserts that the competent authorities initiated the investigation of the facts on a timely basis, that the investigation is the responsibility of National Prosecutor’s Office No. 42 with Full Jurisdiction and Prosecutor’s Office No. 11 of the Second Circuit of the Judicial District of the State of Bolívar, and that these offices have conducted the appropriate proceedings. It states that on September 29, 2008 the Office of the Public Prosecutor indicted the three accused for the alleged commission of the crime of negligent homicide to the detriment of the alleged victims. In the judgment of the State, this fact would constitute evidence that no effort has been made not to guarantee the remedies due the victims and would also prove that the petition does not comply with the requirement to exhaust the domestic remedies. 17. In view of these considerations, the State alleges that domestic legislation provides the judicial remedies and due legal process for the protection of the allegedly violated rights and that the petitioners have not been denied access to those remedies. Therefore, the State believes that the exceptions to the exhaustion of domestic remedies contained in Articles 46.2.a and 46.2.b of the American Convention would not be applicable. 18. With respect to the alleged violation of the rights of the child, the State indicated that the five alleged victims had already reached the age of 18 at the time of the events, reporting that the dates of birth of the alleged victims were as follows: José Gregorio Mota Abarullo, June 26, 1985; Johan José Correa, January 29, 1987; Gabriel de Jesús Yánez Sánchez, April 11, 1987; Rafael Antonio Parra Herrera, December 2, 1986; and Cristian Arnaldo Molina Córdova, April 17, 1987, and thus Article 19 of the American Convention and other related international provisions would not be applicable. 19. Finally, the State reasserts its commitment to comply with applicable international and constitutional provisions in the area of prisons. In this regard, it states that important measures have been adopted, including implementation of the Prison System Humanization Plan; construction of four prisons; creation of ten new Prosecutor’s Offices at the national level with jurisdiction over the prison system; creation of the Superior Penitentiary Council; and the graduation of 208 prison guards from the National University Institute of Penitentiary Studies. IV. ANALYSIS OF COMPETENCE AND ADMISSIBILITY A. Competence 20. The petitioners are authorized by Article 44 of the American Convention to submit petitions to the Commission. The petition indicates individuals as the alleged victims to whom the Venezuelan State agreed to respect and guarantee the rights enshrined in the American Convention. With respect to the State, the Commission indicates that the Bolivarian Republic of Venezuela has been a State Party to the American Convention since August 9, 1977, the date on which it deposited its ratifying instrument. Therefore, the Commission is competent ratione personae to examine the petition. In addition, the Commission is competent ratione loci to hear the petition, in that it alleges violations of rights protected in the American Convention that took place within the territory of the Bolivarian Republic of Venezuela, a State Party to that instrument. 21. The Commission is competent ratione temporis in that the obligation to respect and guarantee the rights protected in the American Convention were already in effect for the State on the date when the events alleged in the petition would have occurred.

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