establishes that this requirement shall not apply when: a) the domestic legislation of the State concerned does
not afford due process of law for the right or rights that have allegedly been violated; b) 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 c) there has been unwarranted delay in rendering a final judgment under the
aforementioned remedies.
17.
The Commission reiterates that it is not its task to identify ex officio the domestic remedies to
be exhausted but rather that the State should indicate on a timely basis the domestic remedies that must be
exhausted and how effective they are.7 As the Inter-American Court has stated: “the State submitting such
objection must specify the domestic remedies that have not been exhausted, as well as show that such remedies
were available and adequate, suitable, and effective.”8
18.
In the instant case, the petitioner alleges that the remedies were exhausted through the
decision of the Supreme Court of Justice of May 6, 2005, which amended the decision of March 31, 2005 of the
Court of Appeals imposing a disciplinary sanction on the alleged victim, a decision they considered to have
violated rights protected by the Convention. The State, for its part, failed to submit its observations regarding
the admissibility of the case and, therefore, did not question whether the remedies had been exhausted.
19.
The Commission reiterates that the purpose of the requirement to exhaust domestic remedies
is to allow domestic authorities to examine the alleged violation of a protected right and, if appropriate, to have
the opportunity to resolve the matter before it is heard by an international body.9
20.
In the present case, the complaint related to the imposition of a sanction on the alleged
victim as a result of having sent an academic paper to the Supreme Court of Justice was heard on appeal by
that court, which in a decision dated May 6, 2005 decided to impose the sanction of a “private reprimand”
on Judge Urrutia. In view of what has been presented by the petitioner, the Commission believes that,
through the appeal heard by the Supreme Court of Justice, the State had the opportunity to hear the alleged
victim’s complaint and to protect the rights he alleged had been violated, so that the requirement established
in Article 46.1 a) of the Convention has been met.
21.
The IACHR notes that the petitioner additionally referred to the alleged ineffectiveness of a
constitutional protection remedy under Article 20 of the Political Constitution of the Republic of Chile that he
could have filed against the decision of the Supreme Court of Justice. The petitioner stated that this remedy
would be ineffective since it would be decided in the first instance by an Appeals Court and on review by the
Supreme Court of Justice.10
22.
On one hand, in principle it is sufficient for someone whose human rights have allegedly been
violated to file and exhaust a series of remedies; it is not necessary that they exhaust all the remedies that are
theoretically available. On the other hand, even considering this option, the Commission notes with respect to
this remedy seeking constitutional protection that, according to the petitioner, the competent authority to hear
this remedy would in the final instance be the Supreme Court of Justice that had previously decided to impose
7 I/A Court H.R. Reverón Trujillo v. Venezuela Case. Preliminary Objection, Merits, Reparations and Costs. Judgment of June 30,
2009. Series C ,No. 197, para. 23.
8 I/A Court H.R. Usón Ramírez v. Venezuela Case. Preliminary Objection, Merits, Reparations and Costs. Judgment of November
20, 2009. Series C, No. 207, para. 19. Citing Velásquez Rodríguez Case, para. 91; Garibaldi v. Brazil Case. Preliminary Objections, Merits,
Reparations and Costs. Judgment of September 23, 2009. Series C, No. 203, para. 46, and Escher et al. v. Brazil Case. Preliminary Objections,
Merits, Reparations and Costs. Judgment of July 6, 2009. Series C, No. 199, para. 28.
9
para. 22.
IACHR, Report No, 6/13, Petition 372-04 Admissibility, Irma Orellana López Vda. de Romero et al., Guatemala, March 19, 2013,
10 The petitioner establishes that Article 20 of the Constitution of Chile states that “An individual whose rights and guarantees
under Article 19…are denied, curtailed or threatened in any way by virtue of abusive or unlawful acts or omissions may – on his own or
through another party acting on his behalf – turn to the respective Court of Appeals….”
4