5 never took advantage – and to date still have not – of the right granted them by the Panamanian Judicial Code to file a complaint or a private action in order to intervene directly or participate in the criminal investigation and in the proceedings that could result from it.” Second, the State indicated that “the Commission declared the petition admissible, even though a criminal investigation by the Panamanian Attorney General’s Office was underway at the time, based on the offenses committed to the detriment of Heliodoro Portugal,” and this was “being conducted in an impartial, serious and exhaustive manner.” On this point, it added lastly that “the Commission admitted the petition and decided to submit the case to the Inter-American Court based on an alleged unjustified delay in the investigations; that is, using the cause for exclusion provided for in Article 46(2)(c) of the American Convention,” even though the State considered that “there [had been] no unjustified delay in the actions of the Attorney General’s Office and the Panamanian Judiciary.” 12. The Commission asked the Court “to reject, as groundless, this preliminary objection,” because “[t]he State had not argued that the decision on admissibility was based on erroneous information or that it was the result of a procedure in which the equality of arms or the right to defense of the parties was curtailed in any way, but merely expressed its disagreement with [the Commission’s] decision.” The Commission also indicated that “any discussion on the unjustified delay and the inconsistency of the domestic proceedings with the State’s Convention obligations should be addressed as part of the merits of the case.” 13. The representatives agreed with the Commission and also indicated that, in Panama, the complaint or private action is not a remedy, but a form of participation by the victims, which they are not obliged to use. 14. The Court has developed clear standards for examining an objection based on an alleged failure to comply with the exhaustion of domestic remedies.6 First, it has interpreted the objection as a defense available to the State and, as such, the State may waive it, either expressly or tacitly. Second, the objection of failure to exhaust domestic resources must be submitted opportunely so that the State can exercise its right to defense; otherwise, it is presumed that the State has tacitly waived the presentation of this argument. Third, the Court has affirmed that the State that presents this objection must specify the domestic remedies that have not been exhausted and prove that those remedies are applicable and effective. 15. Based on the above, the Court will, first, examine the alleged failure to file a complaint or a private action and, second, it will examine the alleged unjustified delay of the criminal proceeding that is still ongoing. To this end, the Court will examine the information that the State provided during the proceedings before the Commission. a) The alleged failure to file a complaint or a private action 16. The case file before the Commission indicates that the State mentioned opportunely7 that the exhaustion of “the possibility that the Panamanian Judicial Code grants for a private 6 Cf. Velásquez Rodríguez v. Honduras. Preliminary objections. Judgment of June 26, 1987. Series C No. 1, para. 88; Salvador Chiriboga v. Ecuador. Preliminary objection and merits. Judgment of May 6, 2008. Series C No. 179, para. 40, and Saramaka People v. Suriname. Preliminary objection, merits, reparations, and costs. Judgment of November 28, 2007. Series C No. 172, para. 43. 7 In its fourth communication during the admissibility proceedings before the Commission, the State alleged for the first time that “[t]he petitioner can still appear before the proceeding and even participate as a complainant in the preliminary investigation being undertaken by the Attorney General’s Office.”