that arises in light of the Convention revolves around the judge hearing
the facts" and that "there is a suitable and effective domestic remedy for
settling conflicts of competency ... within a criminal case... known as
conflict of venue". In this sense it points out that the petitioners invoked
this appeal and that on May 3, 2005, the Second Specialized Court of
the District ruled not to propose for positive conflict of venue.
40.
On the other hand, the petitioners argue that the claim is
admissible under the exception provided for in Article 46.2, paragraphs
a and b, of the American Convention, on the grounds that military
criminal justice is not an appropriate forum and therefore it does not
provide an adequate recourse to investigate, prosecute and punish
human rights violations.
41.
The Commission and Court have established that military
criminal justice is not the appropriate forum to try actions related to
possible human rights violations, but these should be subject to
investigation before the ordinary courts16. The Commission notes that
the facts surrounding the death of Wilfredo Quiñonez had been the
subject of investigation before Military Criminal Justice for over 14
years. This despite unsuccessful attempts by the partie civile to get
ordinary courts to recommend a conflict of venue, and the grounds of
appeal against the decision issued by the Court of Brigade, which is still
pending. In light of the foregoing, the Commission considers that the
exemptions apply to the rule of prior exhaustion of domestic remedies
provided for in Article 46.2.b of the American Convention.
42.
Regarding
the
pending
contentious-administrative
proceedings and disciplinary proceedings filed, referred to by the State,
the Commission has previously held that decisions issued in contentiousadministrative and disciplinary jurisdiction are not appropriate remedy
to meet the requirements of Article 46 of the Convention. Contentiousadministrative jurisdiction is a mechanism that ensures the supervision
of the administrative activity of the State, and that only allows for
compensation for damages caused by abuse of authority. Therefore,
said pending process is not suitable in this analysis.
16 I/A Court H.R., Almonacid Arellano and others Case. Judgment of September 26,
2006. C Series No. 154, paragraph 131, Palamara Iribarne Case. Judgment of
November 22, 2005. C Series No. 135, paragraph 143; 19 Merchants Case, July 5,
2004. C Series No. 109, paragraph 167; and Las Palmeras Case. Judgment of
December 6, 2001. C Series No. 90, paragraph 52 and IACHR, Report No. 63/01, Case
11.710 Carlos Manuel Prada Gonzalez and Evelio Antonio Bolaño Castro, April 6, 2001,
paragraph 41.