26. It must first be clarified which are the domestic remedies that should be exhausted
according to the provisions, in spirit and in letter, of Article 46(1)(a) of the American
Convention. This rule requires, for the admissibility of a petition, “that the remedies under
domestic law have been pursued and exhausted in accordance with generally recognized
principles of international law.” The Inter-American Court has interpreted the norm to mean
that the remedies that should be exhausted are only those that are adequate to remedy the
alleged violations. Adequate domestic remedies are those:
which are suitable to address an infringement of a legal right. A number of
remedies exist in the legal system of every country, but not all are applicable in
every circumstance. If a remedy is not adequate in a specific case, it obviously
need not be exhausted. A norm is meant to have an effect and should not be
interpreted in such a way as to negate its effect or lead to a result that is
manifestly absurd or unreasonable.11
27. The Commission’s jurisprudence acknowledges that when a crime is committed which is ex
officio prosecutable, the State is under the obligation to set the criminal law system into
motion and to process the matter until the end12 and that, in these cases, this is the
appropriate venue to clarify the facts. Likewise, both the Inter-American Court and the
Commission have reaffirmed the obligation of the State to investigate all violations of human
rights, to try those responsible, indemnify the victims, and avoid impunity.13 It is the opinion
of the Commission that the facts alleged by the petitioners in the instant case refer to an
alleged violation, to an act that, according to the state’s domestic legislation constitutes a
crime liable to ex officio prosecution. Hence, it is this criminal proceeding, moved forward by
the State itself, which should be considered in order to determine the admissibility of the
complaint.
28. With respect to the use of the military venue to try the members of the Army allegedly
implicated, the Commission has reiterated its opinion on several occasions that military
jurisdiction is not an appropriate venue and hence does not provide adequate recourse to
investigate, try, and punish violations of human rights provided for by the American
Convention.14
29. Therefore, considering the features of the instant case, it is the opinion of the Commission
that the exception provided for by Article 46(2)(a) of the American Convention is applicable;
consequently the requirement to exhaust domestic remedies is not enforceable. The
requirement established by Article 46(1)(b) of the Convention, regarding the period of six
months, is not applicable either, since the petition was lodged within the reasonable time
period referred to by Article 32(2) of the Commission’s Rules of Procedure for those cases in
which a final judgment has not been handed down prior to the lodging of the petition.
30. Finally, the appeal to the exceptions to the rule on the exhaustion of domestic remedies,
found in Article 46(2) of the Convention, is closely related to the finding of possible violations
to certain rights provided for therein, such as guarantees of judicial access. However, Article
46(2), by nature and purpose, is a norm with autonomous content, vis-à-visthe substantive
norms of the Convention. Therefore, the decision as to whether the exceptions to the rule of
exhaustion of domestic remedies in said Article are applicable to the case at hand must be
made beforehand and separately from the examination of the merits of the case, since it relies
on a standard of evaluation different from the one used to establish the existence of violations
11
I/A Court H.R., Velásquez Rodríguez Case. Judgment of July 29, 1988. Series C No. 4, para. 63.
IACHR, Report No. 52/97, Case 11,218, Arges Sequeira Mangas, Nicaragua, February 18, 1998, paras. 96-97. See
also Report No. 55/97, para. 392.
13
IACHR, Report No. 54/01, Case 12,051, Maria Da Penha Fernandes, Brazil, April 16, 2001, para. 43, citing I/A Court
H.R., Velásquez Rodríguez Case. Judgment of July 29, 1988. Series C. No. 4, para. 176, and I/A Court H.R., Godínez
Cruz Case. Judgment of January 20, 1989. Series C No. 5, para. 175; IACHR, Report Nº 53/01, Case 11,565, Ana,
Beatriz and Celia González Pérez, México, April 4, 2001, para. 84.
14
IACHR, Third Report on the Human Rights Situation in Colombia (1999), p. 175; Second Report on the Situation of
Human Rights in Colombia (1993), p. 246; Report on the Situation of Human Rights in Brazil (1997), pp. 40-42.In
addition, the Inter-American Court has confirmed that criminal military justice is an adequate venue only for the trial
of members of the armed forces for crimes or offenses that by nature attempt against legally protected interests of
military order. I/A Court H.R., Durand and Ugarte Case. Judgment of August 16, 2000. Series C No. 68, para. 117
12
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