1.
Exhaustion of domestic remedies
40. Under Article 46(1) of the American Convention, in order for the Commission to admit a
petition the remedies under domestic law must have been pursued and exhausted, in
accordance with generally recognized principles of international law. Subparagraph 2 of that
same Article, however, stipulates that the provisions under Article 46(1) shall not apply when
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, or when the party alleging
violation of his or her rights has been denied access to the remedies under domestic law or
when there has been an unwarranted delay in rendering a final judgment on those remedies.
41. The rule requiring exhaustion of domestic remedies affords the State the opportunity to
have its own judicial bodies investigate and punish human rights violations committed by State
agents, before having to face an international proceeding. This presupposes, of course, that
due process of law is available at the domestic level to investigate human rights violations and
that such an investigation will be effective. If those conditions are not present, Article 46(2)(a)
of the Convention authorizes the Commission to take the case before domestic remedies are
exhausted.
42. The petitioners allege that there has been unwarranted delay in the respective domestic
proceedings, and also that the remedies under domestic law have been ineffective. Under
Article 31 of the Commission’s Rules of Procedure, when a petitioner asserts any of the
exceptions, it is up to the State to demonstrate that internal remedies were not pursued and
exhausted, unless this is selfevident from the facts presented. Based on principles of
international law, the precedents established by the Commission and the caselaw of the
InterAmerican Court, the respondent State may waive, either expressly or tacitly, it’s right to
invoke the rule requiring exhaustion of domestic remedies. 18 Secondly, the objection asserting
failure to exhaust domestic remedies, to be timely, must be made at�� an early stage of the
proceedings before the Commission by the State entitled to make it, lest a waiver of the
objection be presumed. Third, the burden of proof in such a case rests with the State alleging
failure to exhaust domestic remedies, which must show which remedies have to be exhausted
and provide proof of their effectiveness.
43. Thus, if the State in the case under dispute does not promptly enter the objection
asserting failure to exhaust domestic remedies, it may be presumed to have tacitly waived its
right to do so. In the instant case, the State did not attempt to make the case that the
requirements for the petition’s admissibility had not been met. The Commission therefore
understands that the State tacitly waived its right to use that defense.
44. The State’s tacit waiver notwithstanding, the Commission observes that the exceptions to
the rule requiring exhaustion of domestic remedies do apply, as will be explained below, either
because the internal remedies attempted produced no result, or there was an unwarranted
delay, or the State failed to act ex officio, which was its duty. With every inquiry conducted19
and the subsequent indictment, the judicial authorities were aware of conditions at “Urso
Branco” Prison. With its provisional measures, the Court ordered an investigation of the
situation at the prison, 20 yet the State failed to open any legal proceeding into the matter.
Furthermore, the administrative measures to ensure the safety of the persons deprived of
freedom, which were taken at the behest of the petitioners and of the beneficiaries themselves
through letters sent to the responsible authorities ultimately had no practical effect.
IACHR, Report No. 69/05, petition 960/03, Admissibility, Ivan Eladio Torres, Argentina, 13 October 2005, paragraph
42; IACtHR, Ximenes Lopes v. Brazil. Preliminary Objections. Judgment of November 30, 2005. Series C No. 139,
paragraph 5; IACtHR. Moiwana Community v. Suriname. Judgment of July 15, 2005. Series C No. 124, paragraph 49;
and IACtHR, Serrano Cruz Sisters v. El Salvador. Preliminary Objections. Judgment of November 23, 2004, Series C
No. 118, paragraph 135.
19
Attached is the list identifying the dead by name and the status of the court inquiries or police investigations, which
is based on information provided by both parties.
20
Order of the InterAmerican Court of Human Rights of June 18, 2002; Precautionary Measures requested by the
InterAmerican Commission on Human Rights with regard to the Federative Republic of Brazil – “Urso Branco” Prison
Case, resolving paragraph 1(d).
18
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