B. Objection of failure to exhaust domestic remedies B.1. Arguments of the parties and the Commission 20. The State argued that this case should not have been submitted to the consideration of the Court because domestic remedies had not been exhausted. It asserted that the exceptions contained in paragraphs (a), (b) and (c) of Article 46(2) of the American Convention had not been met,7 because the presumed victim’s next of kin had never been denied access to justice; also the case remained under investigation and they had not availed themselves of the legally established remedies. In this regard, the State indicated, first, that domestic law established the due process that should be exhausted, and mentioned the State’s domestic procedural laws; consequently, individuals considered victims in criminal proceedings had a series of recognized guarantees and rights to promote and advance the investigation or the judicial proceedings. They are also able to exercise the control of the proceedings if they consider that these have been ineffective, inconsistent or mismanaged, or if there has been an unjustified delay, either at the investigation stage or during the judicial proceedings. Second, the State asserted that, the presumed victim’s next of kin had never been denied access to justice, nor had they been prevented from exhausting the domestic remedies, and that the fact that it had not been possible to identify the individual responsible for the death was not due to the State’s lack of willingness, but rather to the complexity of the case. Third, it indicated that the reasonable time had not been violated, because the case was complex; that there had been no inactivity during the investigation, and that the actual Code of Criminal Procedure established a series of rights and tools which allow the next of kin to provide information and play an active role in the investigation. 21. The Commission confirmed that the State had filed this objection at the appropriate time during the admissibility stage before it and that, in response, in paragraphs 29 to 31 of its Admissibility Report, it had taken note that the investigation remained open and had applied the exception of an unjustified delay established in Article 46(2)(c) of the American Convention, based on the fact that five years had passed since the presumed victim’s death without the State having advised that the proceeding had concluded, or provided information on the measures established to advance beyond the initial stage of investigation, or on any recent procedures conducted or progress that would lead to elucidating the facts and to punishing those responsible, and without presenting information that would allow it to be concluded that the investigation was appropriate and effective. All of this in an alleged context of the impunity of violence against women in Guatemala. It indicated that, under the American Convention, the Commission has the authority to take decisions concerning admissibility, and such decisions are taken based on the information available at the time. It noted that the evidence taken into account in the Admissibility Report was “fully confirmed” at the merits stage, because it had concluded that the State was responsible for the denial of justice in accordance with Articles 8 and 25 of the Convention. 22. The representatives agreed with the Commission. They added that the moments at which the investigation had been most active, without this relating to effective actions, coincided with key stages in the processing of the case before the inter-American system and, in any Paragraphs (a), (b) and (c) of Article 46(2) of the American Convention indicate that: “The provisions of paragraphs 1(a) and 1(b) of this article shall not be 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; or (c) there has been unwarranted delay in rendering a final judgment under the aforementioned remedies.” 7 9