jurisprudence, 105 it is not the task of the Court, or of the Commission, to identify ex officio
the remedies that remain to be exhausted. The Court stresses that it is not incumbent on
the international organs to rectify a lack of precision in the State’s arguments. 106
85.
In the instant case, the State argued that the criminal proceedings had not advanced
owing to the absence of Mr. Brewer Carías and, moreover, that the appeals for a declaration
of nullity could not be decided without his presence. Therefore, it argued that the conclusion
of the criminal proceedings and the presentation of remedies such as appeal, cassation or
review constituted appropriate remedies for the presumed victim (supra paras. 17 and 18).
86.
The Court also recalls that, as of its first case, it established that the appropriateness
of the remedies means that the function of these remedies, under domestic law, is
appropriate to protect the legal right that has been violated:
Numerous 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. This
is indicated by the principle that 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. For
example, a civil proceeding specifically cited by the Government, such as a presumptive finding of
death based on disappearance, the purpose of which is to allow heirs to dispose of the estate of the
person presumed deceased or to allow the spouse to remarry, is not an adequate remedy for finding a
person or for obtaining his release, if he has been detained. 107
87.
that:
While, with regard to the effectiveness of the remedies, the Court has established
66.
A remedy must also be effective - that is, capable of producing the result for which it was
designed. Procedural requirements can make the remedy of habeas corpus ineffective: if it is
powerless to compel the authorities, if it presents a danger to those who invoke it, or if it is not
applied impartially.
67.
On the other hand, contrary to the Commission's argument, the mere fact that a
domestic remedy does not produce a result favorable to the petitioner does not in and of
itself demonstrate the inexistence or exhaustion of all effective domestic remedies. For
example, the petitioner may not have invoked the appropriate remedy in a timely fashion 108
(bold added).
88.
The case submitted to the Court has special characteristics because: (i) the
proceedings are at an intermediate stage (infra paras. 95 to 97), and (ii) the main obstacle
to the advance of the proceedings is the absence of Mr. Brewer Carías (infra paras. 138 to
143). In this regard, the Court considers that in this case, in which the preliminary hearing
and, at least, a first instance decision are still pending, it is not possible to rule on the
presumed violation of judicial guarantees, because there is still no certainty about how the
proceedings will go forward and whether many of the allegations made may be rectified at
104
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections, para. 88, and Case of Furlan and
family members v. Argentina, para. 25.
105
Cf. European Court of Human Rights (hereinafter “ECHR”), Case of Deweer v. Belgium (No. 6903/75),
Judgment of 27 February 1980, para. 26; Case of Foti and Others v. Italy (No.7604/76; 7719/76; 7781/77;
7913/77), Judgment of 10 December 1982, para. 48, and Case of de Jong, Baljet and van den Brink v. The
Netherlands (No. 8805/79 8806/79 9242/81), Judgment of 22 May 1984, para. 36.
106
Cf. Case of Reverón Trujillo v. Venezuela, para. 23, and Case of Liakat Ali Alibux v. Suriname, para. 16.
See also: ECHR, Case of Bozano v. France, Judgment of 18 December 1986, para. 46.
107
Case of Velásquez Rodríguez v. Honduras. Merits, para. 64.
108
Case of Velásquez Rodríguez v. Honduras. Merits, para. 66 and 67.
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