4
22.
Finally, the Commission is competent ratione materiae, because the petition alleges
violations of human rights protected by the American Convention.
B.
Exhaustion of domestic remedies
23.
Article 46.1.a of the American Convention requires the prior exhaustion of domestic
remedies in accordance with generally recognized principles of international law as a requirement for the
admission of claims regarding the alleged violation of the American Convention. Article 46.2 of the
Convention provides that the prior exhaustion of domestic remedies requirement is not applicable when:
a.
b.
c.
the domestic legislation of the state concerned does not afford due process of law for the
protection of the right or rights that have allegedly been violated;
the party alleging violation of his rights has been denied access to the remedies under
domestic law or has been prevented from exhausting them; or
there has been unwarranted delay in rendering a final judgment under the aforementioned
remedies.
24.
The prior exhaustion requirement applies when there are adequate and effective remedies
available in the national system to remedy the alleged violation. The purpose of this admissibility condition
is to allow national authorities to hear the alleged violation of a protected right and, if appropriate, to resolve
it before the matter is heard by an international body.
25.
As established in Article 31.3 of the Commission’s Rules of Procedure, when the petitioner
contends that it is unable to prove compliance with the requirement to exhaust domestic remedies it shall
be up to the State concerned to demonstrate that such remedies have not been exhausted, unless this is
clearly deduced from the case file.
26.
The State maintains a failure to exhaust the domestic remedies given that the principal
proceeding conducted regarding the deaths of the alleged victims has still not been concluded. It believes
that the petitioners did not exhaust the appeal for constitutional protection established in Article 27 of the
Venezuelan Constitution.
27.
Clarification is then needed as to which domestic remedies must be exhausted with respect
to this petition. In principle, in cases of alleged violations of the right to life, the appropriate remedy is the
investigation and the criminal proceeding initiated and driven ex officio by the State to identify and punish
those responsible.1 This criterion has been consistently maintained by the IACHR, inter alia, in cases where
it is alleged that individuals died while in the custody of the State. 2 In addition, the IACHR has deemed that
the appeal for constitutional protection is not a suitable remedy that must be exhausted in cases alleging
that individuals died while in the custody of the State.3
28.
With respect to the criminal process, the petitioners claim that there have been
unwarranted delays both in the investigation of the facts and in the trial phase. In this regard, they indicate
that there was excessive delay in concluding the investigations, exceeding by far the maximum period
established by law; that some of the essential tests in this proceeding were not conducted on a timely basis;
1
Cf., IACHR, Report No. 152/11, Petition 1400-06, Admissibility, Luis and Leonardo Caizales Dogenesama, Colombia,
November 2, 2011, para. 43; Report No. 151/11, Petition 1077-06, Admissibility, Luis Giován Laverde Moreno et al., Colombia,
November 2, 2011, para. 26; Report No. 22/09, Petition 908-04, Admissibility, Igmar Alexander Landaeta Mejías, Venezuela, March
20, 2009, para. 45. See also, IAHCR, Report No 52/97, Case 11,218, Arges Sequeira Mangas, 1997 Annual Report of the IACHR,
paras. 96 and 97; and IACHR, Report No. 55/97, Case 11,137, Abella et al., para. 392.
2
IACHR, Report No. 14/11, Petition 1347-07, Admissibility, Orlando Olivares et al., Venezuela, March 23, 2011, para. 32;
Report No. 78/08, Petition 785-05, Admissibility, Rafael Arturo Pacheco Teruel et al. (Death due to Fire at the San Pedro Sula Prison),
Honduras, October 17, 2008, paras. 29-31; Report No. 54/07, Petition 4614-02, Admissibility, Wilmer Antonio González Rojas,
Nicaragua, paras. 58 and 59.
3
36.
IACHR, Report No. 14/11, Petition 1347-07, Admissibility, Orlando Olivares et al., Venezuela, March 23, 2011, paras. 29-