purported to have occurred within the territory of Ecuador, a state party to said
treaty. The Commission is competent ratione temporis because the obligation to
observe and ensure the rights protected in the American Convention was already
binding upon the State at the time the events described in the petition are alleged to
have occurred. Finally, the Commission has ratione materiae competence because
the petition alleges violations of human rights protected by the American Convention.
B.
Other admissibility requirements
1.
Exhaustion of domestic remedies
28.
Article 46(1)(a) of the American Convention provides that admission
of petitions lodged with the Inter-American Commission alleging violation of the
Convention shall be subject to the requirement that the remedies under domestic law
have been pursued and exhausted in accordance with generally recognized principles
of international law. Article 46(2) of the Convention provides that the rule on 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.
According to Article 31(3) of the Rules of Procedure of the IACHR, when the petitioner
contends that he or she is unable to prove compliance with the rule of exhaustion of
domestic remedies, it shall be up to the State concerned to show that the domestic
remedies that remain to be exhausted are “adequate" for dealing with the violation
alleged, in other words, that the function of those remedies in the legal system of
the country is suitable to address an infringement of a legal right .17
29.
To begin with, the Commission must clarify which domestic
remedies need to be exhausted in the instant case. The Inter-American Court has
found that the only those remedies that are adequate for addressing an alleged
violation need be exhausted In the words of the Court
Adequate domestic remedies are those which are suitable to address an
infringement of a legal right. A number of remedies exist in the legal system
of every country, but not all are applicable in every circumstance. If a remedy
is not adequate in a specific case, it obviously need not be exhausted. A norm
is meant to have an effect and should not be interpreted in such a way as to
negate its effect or lead to a result that is manifestly absurd or unreasonable.18
30.
With respect to the instant petition, it emerges from the arguments
of the parties that following the events of February 27, 2001, a private indictment
was brought before the police courts against four agents of the state. 19 By
interlocutory order of March 30, 2001, the preliminary investigation judge admitted
the private indictment against two members of the National Police: Carlos Eduardo
Rivera Enríquez and Edison Patricio Yépez Espín. The trial of Edison Patricio Yépez
Espín was suspended due to the fact that he remains at large. On April 19, 2002,
17 See also I/A Court H.R., Velásquez Rodríguez Case. Judgment of July 29, 1988, para. 64.
18 I/A Court H.R., Velásquez Rodríguez Case. Judgment of July 29, 1988, para. 63.
19 The petitioners cite the indictment of the prosecutor of the Second District Court of Police Justice in
criminal proceeding No. 164-2001, November 27, 2001. Annex to the original petition received by the
IACHR on June 20, 2002.
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