6
law, as a requirement for the admission of complaints regarding the alleged violation of the Convention.
For its part, Article 46.2 of the Convention provides that the prior exhaustion of domestic remedies
requirement is not applicable when (i) 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; (ii) 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 (iii) there has been unwarranted delay in rendering a final judgment
under the aforementioned remedies.
25.
In the matter under review, the account in the petition and information provided indicate
that the petitioner alleges judicial delay in the investigation and punishment of the acts of torture
reported by him. For its part, the State alleges a failure to exhaust the domestic remedies. It notes in
particular that after the Supreme Court decision of May 5, 2008 ruling on the unconstitutionality motion
filed by the Prosecutor’s Office and the complainants in the criminal case prosecuting those allegedly
responsible for the acts of torture reported by the petitioner, the domestic courts would continue to
prosecute the criminal case in the domestic jurisdiction and that a preliminary hearing had been convened
for the month of July 2012.
26.
The first issue to be clarified is which domestic remedies should be exhausted in the
instant case. The Inter-American Court of Human Rights (hereinafter “the I/A Court HR”) has indicated
that only remedies suitable for remedying the violations allegedly committed must be exhausted.
Adequate 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.3
27.
In this regard, in the instant case it should be noted that the precedents established by
the Commission recognize that whenever an offense prosecutable ex officio is committed, the State has
the obligation to advance and promote the criminal process4 and that in such cases, this is the suitable
route for clarifying the facts, judging those responsible, and establishing the respective criminal penalties,
in addition to facilitating other forms of monetary reparations. The IACHR believes that the facts alleged
in the instant case involve the alleged violation of fundamental rights such as the right to humane
treatment, which are reflected in domestic legislation as offenses prosecutable ex officio, and thus it is
this process, advanced by the State itself, which should be considered for purposes of determining the
admissibility of the complaint.
28.
In this regard, the IACHR has established that as a general rule a criminal investigation
should be conducted promptly in order to protect the interests of the victim, preserve the evidence, and
even safeguard the rights of any who may be considered suspect in the context of the investigation.5 For
3
I/A Court HR., Velásquez Rodríguez v. Honduras Case. Merits. Judgment of July 29, 1988. Series C, No. 4. 64.
4 Report No. 52/97, Case 11.218, Arges Sequeira Mangas, Nicaragua, 1997 IACHR Annual Report, paras. 96 and 97. See
also Report No. 55/97, Case 11.137, Juan Carlos Abella, Argentina, para. 392 and Report No. 62/00, Case 11.727, Hernando Osorio
Correa, Colombia, 2000 IACHR Annual Report, para. 24.
5
IACHR, Report No. 71/09, Petition 858-06, Massacre of Belén - Altavista, Colombia, August 5, 2009, para. 36.