B.
Exhaustion of Domestic Remedies
46.
Article 46.1.a of the American Convention provides that in order for a
complaint filed with the Inter-American Commission to be admissible in accordance with
Article 44 of the Convention, domestic remedies must have been pursued and exhausted in
accordance with generally recognized principles of international law. The purpose of this
requirement is to allow national authorities to hear the alleged violation of a protected right
and, if appropriate, to give them the opportunity to resolve the matter before it is heard by
an international body.
47.
The prior exhaustion requirement applies when the national system actually
makes available remedies that are adequate and effective to remedy the alleged violation. In
this respect, Article 46.2 specifies that the requirement does not apply when domestic
legislation does not afford due process of law for the protection of the right in question or if
the alleged victim did not have access to the domestic remedies or if there is an unwarranted
delay in rendering a decision under those remedies.
48.
The Commission notes that although the State reported on the domestic
judicial proceedings and asked that consideration be given to the complexity of the matter
and some difficulties in the investigation, it did not expressly submit an objection based on a
failure to exhaust domestic remedies, and thus tacitly waived this defense. For her part, the
petitioner argued that the domestic process has been extremely slow and that both
prosecutors and judges have committed a series of errors that have resulted in decisions that
impose penalties that are minimal and not in proportion to what happened to the alleged
victim.
49.
Taking the above into account, the Commission considers it relevant to offer
some considerations regarding compliance with the requirement to exhaust domestic
remedies.
50.
First, according to the information provided by the petitioner and not
disputed by the State, the relatives of the alleged victim sought out the agencies available to
them to establish what had happened to the victim and locate his remains by reporting his
disappearance starting on the very date he disappeared, July 17, 1980. According to the
available information, during the dictatorship no ex officio proceeding was conducted to clarify
the facts.
51.
The information provided by both parties indicates that since the return of
democracy in Bolivia, four investigations have been conducted into what happened to Juan
Carlos Flores Bedregal. The first investigation was conducted by the National Commission on
the Disappeared, starting in 1984, in which testimony was gathered indicating the supposed
location of the alleged victim, although his remains were not ultimately found. The second
investigation was initiated by the Joint Committee of the National Congress and led to the
trial of responsibilities and the 1993 conviction against Luís García Meza and his collaborators.
The third investigation was conducted starting in 1997 by a Parliamentary Committee and
delivered a report in 1999 to the Superior Court of the District of La Paz recommending that
a proceeding be opened up against some twenty repressive agents. The fourth investigation
was initiated by the Office of the Public Prosecutor in February 1999 in response to this report
and is currently in the appeals stage.
52.
Of these four proceedings, two are judicial in nature and directed to clarifying
the events and identifying and criminally punishing those responsible and thus constitute
suitable remedies in a case such as this. In this respect, the Commission will analyze these