6
generally recognized principles of international law. The purpose of this requirement is to allow
national authorities to examine alleged violations of a protected right, and, if appropriate, to
resolve them before their consideration by an international authority.
29.
Article 46.2 of the Convention states that the prior exhaustion of domestic remedies
shall not be required when: (a) 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, (b) the
party alleging violation of his rights has been denied access to the remedies under domestic law or
has been prevented from exhausting them, and (c) there has been unwarranted delay in rendering
a final judgment under the aforementioned remedies.
30.
In the case at hand, the petitioners seek application of the exception to the rule
requiring the exhaustion of domestic remedies contained in Article 46.2.c of the American
Convention, in that there has been an unwarranted delay affecting the resolution of the habeas
corpus remedy filed on behalf of Patricia Cuellar on July 31, 1982, of criminal proceedings No. 39282, and of the complaint lodged with the office of the General Prosecutor of the Republic in March
2003. They argue that in spite of the time that has passed since those proceedings commenced,
they are still pending resolution. They further contend that the remedy for prompt decision
referred by the State is an extraordinary remedy that domestic law provides for civil matters, and
that it is not suitable on account of the criminal nature of the facts in the case.
31.
In contrast, the State maintains that the case at hand is inadmissible because the
domestic remedies available in El Salvador have not been exhausted. Thus, it holds that: (i)
proceedings dealing with matters relating to the alleged victims are underway before the office of
the General Prosecutor of the Republic and before the Fourth Investigating Court, and that they are
still pending resolution; and (ii) given the petitioners’ dissatisfaction with the length of time that
has gone by since the opening of criminal proceedings No. 392-82, they should have filed a
remedy for prompt decision: a remedy that, the State maintains, was expressly legislated for in the
Code of Criminal Procedure in force at the time of the incident.
32.
In connection with this, the IACHR notes that there are two matters that must be
addressed to rule on whether domestic remedies have been exhausted in the case at hand,
namely: (i) the admissibility of the exception invoked by the petitioners on account of the time it
has taken to process the judicial proceedings still pending before the domestic courts, and (ii)
whether the complaint for justice delayed is a remedy that needs to be exhausted or not.
33.
Regarding the first point, the Commission notes that there is no dispute between
the parties about the existence of the three sets of judicial proceedings that have been reported to
it, or about the fact that none of them have been brought to a conclusion: (i) the habeas corpus
filing lodged on behalf of Patricia Emilie Cuellar Sandoval on July 31, 1982; (ii) criminal
proceedings No. 392-82, begun in November 1982 and lodged with the Fourth Criminal Court of
San Salvador (since renamed the Fourth Investigating Court of San Salvador); and (iii) the
complaint lodged with the office of the General Prosecutor of the Republic of El Salvador on March
28, 2003, for the forced disappearances of Patricia Emilie Cuellar Sandoval, Mauricio Cuellar
Cuellar, and Julia Orbelina Pérez.
34.
The Commission’s established precedents indicate that whenever an ex officio
prosecuting crime is committed, the State has the obligation of bringing and pursuing criminal
proceedings and that, in such cases, this is the appropriate avenue to clarify the facts, try those
responsible, establish the corresponding criminal penalties and make other forms of pecuniary