the criminal proceedings in relation to the decision to archive the case, or in the ordinary civil lawsuit to claim damages.22 23. Thus, for the purposes of determining whether the conventional requirement of prior exhaustion of domestic remedies has been met, and before analyzing the legal actions filed in the domestic courts regarding the situation described in Admissibility Report Nº 136/09 of November 13, 2009, the Commission stated the object of the complaint in the following terms: 1) “the alleged lack of adequate and sufficient medical care provided to the alleged victim while in jail, especially during the time just prior to her death; and 2) the alleged absence of a proper investigation into the circumstances of her death.” The Commission then considered the State’s argument in its report, deeming it inadmissible to require the exhaustion of the two remedies mentioned by the State.23 24. However, in the preliminary objection filed before this Court it is not clear that the State maintains its argument regarding the failure to file a complaint. In this objection, the State focused on the fact that the petitioners did not exhaust the following remedies: 1) an ordinary civil lawsuit to claim damages, and 2) summary proceedings to establish the civil liability of public officials and employees. Therefore, with respect to the dispute, the Court considers that the State has tacitly renounced its previous argument before the Commission. Cf. Briefs of the State forwarded to the Commission, dated June 9, 2006, September 25, 2006, January 8, 2007, November 17, 2008, April 21, 2009 and September 29, 2009. In this last brief, the State argued that the petitioners did not attempt to exhaust the domestic remedies in the civil and criminal courts, and therefore the petition should be declared inadmissible, owing to the failure to exhaust domestic remedies pursuant to Article 46(1) of the Convention. On the one hand, the State argued that domestic remedies did indeed exist, since a criminal investigation was carried out and concluded that the death of Mrs. Maria Inés Chinchilla Sandoval did not meet the criteria to configure a crime; therefore, the Public Prosecution Service, based on the principle of objectivity and legality, requested the withdrawal of the case. It added that the petitioner could have filed a complaint and used the power granted by the Code of Criminal Procedure to oppose the prosecutor’s request to withdraw the claim, but did not do so. In addition, the State argued that another remedy of a civil nature was available, namely an ordinary lawsuit for damages, protected at the constitutional and legal level, which had not been used. 22 In relation to the first, the Commission observed that, from 1997, Mrs. Chinchilla Sandoval filed several administrative petitions to the prison authorities regarding her health condition, namely, requests for authorization to attend medical appointments at the hospital and incidental motions for early release for remission of sentences before the Second Criminal Enforcement Court of Guatemala. Thus, it considered that the alleged victim made use of the means at her disposal, both legal and administrative, to obtain adequate and sufficient medical care while serving her sentence in prison and that she made the State aware of her health condition, which was deteriorating at an accelerated pace due to the various ailments that afflicted her. In that sense, the Commission considered that “the conventional requirement of prior exhaustion of domestic remedies has been met with regard to the object of the complaint pertaining to the alleged lack of medical care provided to Mrs. Chinchilla Sandoval at the Women’s Orientation Center.” In relation to the second point, the Commission observed that “the relatives of the alleged victim were not notified of the investigation opened by the Prosecutor’s Office or of its outcome,” and therefore “the lack of information and notification made it impossible for the relatives of Mrs. Chinchilla Sandoval to file a petition to change the decision to close the case, to present their allegations and evidence of the deficient medical care provided to the alleged victim after she fell, as they have done in their petition lodged with the IACHR” (para. 44). The Commission considered that “[i]n addition, […] the alleged facts refer to the alleged violation of fundamental rights such as the right to life and to personal integrity, violations that in the domestic legislation are categorized as crimes that can be prosecuted by a court on its own, and whose investigation and prosecution should be pursued by the State;” given that she was in jail and under the custody of the State when she died, “it should [have been] first, the responsibility of the State to clarify the circumstances of her death and not the efforts of private interests, or for the investigation to depend on the initiative of those private interests” (para.45). Consequently, the Commission considered that in the second aspect of the complaint relating to the investigation into the death of Mrs. Chinchilla Sandoval, the exception to the requirement of prior exhaustion of domestic remedies established in Article 46(2)(b) of the Convention applies (para.46). Moreover, it pointed out that “compensation for loss and damages which, according to the State, the petitioners did not claim could not, in this case, be considered an efficient and sufficient remedy to investigate, clarify and, if warranted, prosecute the consequences of a death, allegedly caused by negligence and the failure on the part of government employees to provide adequate medical care to a person deprived of liberty.” Cf. Admissibility Report, supra, para. 47. 23 11