1. Exhaustion of domestic remedies 28. Article 46(1)(a) of the American Convention requires the prior exhaustion of remedies available in the domestic jurisdiction in keeping with generally recognized principles of international law in order to admit a claim concerning an alleged violation of the American Convention. 29. Article 46(2) of the Convention provides that the requirement of prior exhaustion of domestic remedies does not apply when: a) b) c) 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; 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 there has been unwarranted delay in rendering a final judgment under the aforementioned remedies. As indicated by Article 31(3) of the Commission’s Rules of Procedure, and as indicated by the Inter-American Court, whenever a state alleges that petitioners have failed to exhaust domestic remedies, it bears the burden of showing that the remedies that have not been exhausted are “adequate” to cure the violation alleged, that is, that the function of those remedies in domestic law is suitable for protecting the legal situation infringed. 2 30. In the instant case the State alleges that the petition does not satisfy the prior exhaustion requirement, provided for at Article 46(1)(a) of the American Convention considering that to date Colfondos has not made a final decision on the case of Ángel Alberto Duque. For their part, the petitioners argue that there is no due process in the domestic legal order so as to enable the alleged victim to get, in effective, timely, and adequate fashion, protection for his rights, accordingly they argue the exception to the prior exhaustion rule established at Article 46(2)(a) of the American Convention. The Commission observes that the response of Colfondos, on indicating that the alleged victim “does not show the status of beneficiary before the law so as to be able to access the survivor’s pension and consequently the transaction requested cannot be carried out,” would constitute a negative response to his claims. 31. In view of the parties’ arguments, one must first clarify what domestic remedies need be exhausted in a case such as this, in light of the case-law of the inter-American system. The Commission observes that the petitioners’ claims refer to the alleged de jure discrimination in relation to same-sex couples. Specifically, they allege that legal provisions were applied to the alleged victim that impeded his access to the survivor’s pension of his partner. 32. The Commission observes that the petitioners allege that the tutela action filed by the alleged victim was not aimed at recognizing substitution in respect of a pension, since there is a specific procedure for such recognition that must be initiated separately, but rather was aimed at obtaining a pronouncement that interprets the provisions on social security so as to benefit same-sex couples. In this respect, the Commission observes that the petitioners sought, through the tutela action, recognition of the principle of equality for same-sex couples in the granting of survivor’s pensions. 33. The Commission observes that the tutela action was denied in the first and second instances, considering that … it is not for the constitutional judge to order the recognition and payment of the survivor’s pension, due to the death of his partner since … the moving party has available the regular jurisdiction, and enjoys the remedies afforded by law, to file, with due legal reasoning before the competent authority insofar as … the 2 Article 31(3) of the Commission’s Rules of Procedure. See also I/A Court H.R., Case of Velásquez Rodríguez, Judgment of July 29, 1988, para. 64. 6