case, resulted from the impetus given to the proceedings by Jorge Rolando Velásquez Durán,
the presumed victim’s father, in his capacity as joint complainant. They argued that the alleged
complexity was the result of the State’s actions, because serious errors had been committed
when handling the crime scene, and years had passed before routine investigation procedures
had been conducted. They also stressed that, despite the constant indifference and resistance of
the Public Prosecution Service, the continuous efforts of Mr. Velásquez Durán had resulted in
“most of the evidence and lines of investigation,” as well as the procedures presented by the
State as evidence of its supposed diligence.
B.2. Considerations of the Court
23.
Article 46(1)(a) of the American Convention establishes that one of the requirements for
“[a]dmission by the Commission of a petition or communication” is “that the remedies under
domestic law have been pursued and exhausted in accordance with generally recognized
principles of international law.” One of the exception to that requirement, established in
paragraph (2)(c) of Article 46, occurs when “there has been unwarranted delay in rendering a
final judgment under the aforementioned remedies.” In the instant case, in the initial petition of
December 10, 2007, Article 46(2) of the Convention was cited to indicate that prior exhaustion
of domestic remedies was not appropriate. Meanwhile, during the admissibility procedure before
the Commission and in a communication of May 17, 2010, the State argued that the
requirement of exhaustion of domestic remedies had not been met. 8 Therefore, this preliminary
objection was filed at the proper procedural moment. In the Admissibility Report of October 4,
2010, the Commission applied the exception to the requirement of exhaustion of domestic
remedies established in Article 46(2)(c) of the Convention, because it had “verifie[d] an
unjustified delay by the Guatemalan jurisdictional organs in relation to the reported facts.”9
24.
The Court recalls that, for the preliminary objection of failure to exhaust domestic
resources to be admissible, the State that presents this objection must specify the domestic
remedies that have not been exhausted and prove that these remedies were available and
adequate, appropriate and effective. 10 Thus, it is not the task of the Court, or the Commission,
to identify ex officio the domestic remedies that remain to be exhausted. The Court underlines
that it is not incumbent on the international organs to rectify the lack of precision of the State’s
arguments.11
25.
Furthermore, Article 46(2) of the Convention stipulates that the requirement of prior
exhaustion of domestic remedies is not applicable when: (a) 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; (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, and
(c) there has been unwarranted delay in rendering a final judgment under the aforementioned
remedies. In this regard, the Court has indicated that it is not required to exhaust ineffective
remedies:
[The remedy] must be truly effective in establishing whether there has been a violation of human
rights and in providing redress. A remedy which proves illusory because of the general conditions
prevailing in the country, or even in the particular circumstances of a given case, cannot be
Cf. The State’s brief of May 17, 2010 (evidence file, folio 603).
Cf. Admissibility Report No. 110/10 of October 4, 2010 (evidence file, folio 590).
10
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections. Judgment of June 26, 1987. Series C No.
1, paras. 88 and 91, and Case of López Lone et al. v. Honduras. Preliminary objection, merits, reparations and costs.
Judgment of October 5, 2015. Series C No. 302, para. 21.
11
Cf. Case of Reverón Trujillo v. Venezuela. Preliminary objection, merits, reparations and costs. Judgment of June 30,
2009. Series C No. 197, para. 23, and Case of López Lone et al. v. Honduras, supra, para. 21.
8
9
10