close to those on which the facts occurred in order to substantiate this. It argued that these
remedies are in keeping with the standards of reasonable time established in Article 25 of the
Convention; that the respective decisions are executable immediately, and that they could have
been used by the presumed victims, who were assisted by a lawyer who had already filed an
application for habeas corpus to obtain the release of Mrs. Tineo, without there being any
explanation why they were unable to exhaust these remedies. Consequently, the State argued
that it had respected the judicial protection recognized in Article 25 of the Convention and,
therefore, the Court should not rule on an eventual violation of due process, based on the
principle of subsidiarity.
191. Before examining the appropriateness and effectiveness of a domestic administrative or
judicial remedy in relation to an alleged violation of a right, it is necessary to observe whether
the remedy existed and whether it was really possible to exercise it in the context of the
situation of the country, the facts of the case, or the specific situation of the presumed victims.
192. The Court notes that, as is clear from its arguments, the State proposed an abstract
analysis of the effectiveness of the said remedies, citing case law of the Bolivian Constitutional
Court, to argue that, at the time of the events, those remedies would have been appropriate
and effective to have halted the expulsion of the Pacheco Tineo family or to have questioned
violations of due process in the denial of their request for refugee status, and even to eventually
request damages. However, in this case the presumed victims did not have the least possibility
of knowing the decisions that had been taken in relation to their request and their migratory
status, because it has been proved that they were expelled from Bolivia on the morning
following the issue of the expulsion decision, which had been issued in an excessively short
period; had not been notified to them, and was executed immediately. This situation made any
domestic remedy that existed in Bolivia nugatory and impracticable to have provided protection
or remedied the decisions taken against them. Consequently, it is not incumbent on the Court to
examine in abstracto the appropriateness and effectiveness of these remedies to rectify the
violations of the rights analyzed above.
193. Furthermore, it is irrelevant to analyze whether, under domestic law, administrative
remedies of reconsideration or appeal240 could have been filed, or whether those remedies could
be used, because the fact is that there had been a verbal agreement between the Bolivian and
Chilean authorities to make the transfer to Chile, as well as measures taken by the latter to that
end, which made it reasonably improbable or unforeseeable that, at the same time, a
deportation decision would be issued against them or that this could be executed so rapidly.
194. Thus, even if, hypothetically, these remedies could have been appropriate, effective and
adequate to this end, the fact is that, in the practice, their existence was illusory and the right
of the members of the Pacheco Tineo family to use them was nugatory to contest both their
expulsion and the denial of their request for asylum. The failure to notify them was, in itself, a
violation of Article 8 of the Convention, because it placed the presumed victims in a situation of
uncertainty concerning their legal situation and made the exercise of the right to appeal the
decisions impracticable.241 In other words, the presumed victims did not have the real possibility
of filing any remedy while on Bolivian territory.
195. Given this situation, it was not possible for the members of the family to use these
remedies; in other words, they could not be required to do so. Consequently, the Court
240
At the domestic level, the possibility of reconsideration was established in Supreme Decree 19640, within the
30 days following the denial of refugee status and its notification to the parties and to UNHCR; as well as in article 26(h)
of Supreme Decree 24423, which established the possibility of appealing against an expulsion within 48 hours. Cf.
Supreme Decree 24423 establishing the Immigration Regime, of November 29, 1996.
241
Cf. Case of Vélez Loor v. Panama, para. 180. See also, mutatis mutandi, Case of García Asto and Ramírez Rojas
v. Peru. Preliminary objection, merits, reparations and costs. Judgment of November 25, 2005. Series C No. 137, para.
155
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