7
the date on which the facts set forth in the petition are alleged to have occurred. Finally, the
Commission is competent ratione materiae, because the petition alleges possible violations of
human rights protected by the American Convention.
B.
Admissibility requirements
1.
Exhaustion of domestic remedies
39.
Article 46(1)(a) of the American Convention requires the prior exhaustion of domestic
remedies in keeping with generally recognized principles of international law as a requirement for
admitting claims alleging violations of the American Convention.
40.
In the instant petition, the State alleges: (1) that as of the date of filing of the petition,
the regular jurisdiction criminal proceeding against the alleged victim was pending, (2) the failure to
exhaust the remedy of habeas corpus against the first detention of the alleged victim; and (3) the
failure to exhaust the contentious-administrative action due to the alleged delay in the regular
jurisdiction criminal proceeding against him. The petitioners, for their part, allege that due to the
incommunicado detention of Gonzalo Cortéz it was not possible to file a writ of habeas corpus, and
that the exception provided for at Article 46(2)(c) of the American Convention, regarding
unwarranted delay in the regular criminal proceeding, applies in this case.
41.
Article 31(3) of the Commission’s Rules of Procedure establishes that when
petitioners allege that exception, the burden of proving that said domestic remedies continue to
represent an effective corrective measure in the face of the alleged harm is shifted to the State.
42.
One must clarify which domestic remedies have to be exhausted in the instant case.
The Inter-American Court has noted that only those remedies adequate to address the violations
allegedly committed need be exhausted:
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.4
43.
The Commission observes that this petition refers specifically to the facts related to
the alleged violations of the right to personal liberty and to due process in the criminal proceeding
brought against Gonzalo Cortéz, which include the alleged arbitrary detentions, the incommunicado
detention, and the alleged violations of due process, as well as the alleged cruel, inhuman, and
degrading treatment to which the alleged victim is said to have been subjected, and the alleged
violation of his right to private property.
44.
First, with respect to the remedies adequate for challenging the deprivation of liberty,
the Commission observes that as of the date on which the facts occurred two remedies were
available in Ecuador: (i) the constitutional habeas corpus remedy, and (ii) the amparo de libertad
remedy, also known as legal habeas corpus.
4
I/A Court H.R., Case of Velásquez Rodríguez. Judgment of July 29, 1988. Series C No. 4, para. 63.