B.
Exhaustion of domestic remedies
77. Article 46 (1) (a) of the American Convention provides that admissibility of a petition
presented to the Inter-American Commission under Article 44 of the Convention requires that
domestic remedies must have been pursued and exhausted in accordance with generally
recognized principles of international law. This requirement is intended to allow the national
authorities to examine the alleged violation of a protected right and, where appropriate, to
have the opportunity to resolve it before it is heard in an international venue.
78. The main subject of the claims set out in the various petitions refers to 1) alleged violation
of Article 8 (2) (h) of the American Convention, because the alleged victims were convicted
without having available to them in domestic law a remedy that would allow for a
comprehensive examination of the respective judgments; 2) Alleged deficiencies in the public
defender’s office; hindrances to the defense; alleged lack of the guarantee of impartiality of
the judges; alleged failure to formally present the charges, and of adequate legal
representation.
1)
Alleged violation of Article 8 (2) (h) of the American Convention
79. In the instant case, the petitioners claim their right to a comprehensive examination of the
convictions handed down by the courts of law of Costa Rica. For its part, the State contends
that with the adoption of Law 8.503, the legal system gave effect to the Convention, and the
subsequent adoption of Law 8.837 “Creation of an Appeals Procedure, other Reforms to the
appeals system, and implementation of new rules for oral proceedings in criminal trials”,
reinforced the protection of the fundamental rights and guarantees of due process, to
guarantee legal certainty.
80. For the purposes of examining admissibility, the Commission notes that prior to the entry
into force of Law 8.503 in June 2006, the Inter-American Court found that the appeal
procedure (recurso de casación) provided for challenging a conviction did not satisfy “the
requirement that it be a liberal remedy that would permit the higher court to do a thorough
analysis or examination of all the issues debated and analyzed in the lower court” 75.The
Commission thus observes that the legislation prior to the legal reform of June 2006 did not
provide an appropriate procedure compatible with the American Convention.
81. Also, the IACHR notes that subsequent to the coming into force of Law 8.503, the
remedies available to the alleged victims –appeal [casación] and revision- were limited in
scope and did not offer a comprehensive examination because of the rules that governed
them. For other part, the Commission observes that the remedy of appeal [recurso de
apelación] as created by Law 8.837 does not apply to the alleged victims in the present case,
because when the referred Law enters in force, the alleged victims will be entitled, for one
time only, to present a request for a revision.
82. Therefore, for the purposes of admissibility, the Commission will analyze in the merits if
the domestic legislation offered the alleged victims an appropriate remedy for the protection of
the right to a comprehensive examination of their convictions. Article 46 (2) (a) of the
American Convention provides that one of the exceptions to the requirement that domestic
remedies be exhausted is that the domestic legislation of the State does not afford due process
of law for the protection of the right allegedly violated. As a result, the Commission finds that
this exception applies in the case regarding the alleged violation of Article 8 (2) (h) of the
American Convention.
2) Alleged deficiencies in the office of the public defender; hindrances to the
defense; alleged failure to guarantee the impartiality of the judges; alleged failure to
formally present the charges and legal counsel; allegedly excessive preventive
detention
75
I/A Court H.R., Case of Herrera Ulloa Vs. Costa Rica. Judgment of July 2, 2004. Series C No. 107, para. 167.
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