B.3.3.3.
There has been unwarranted delay in rendering a final judgment under the
aforementioned remedies (article 46(2)(c)
114. The representatives argued that the delay in deciding the requests for annulment
was unwarranted under domestic and international law (supra para. 34).
115. Even though the Court has previously decided that requests for annulment were not
appropriate remedies, it is pertinent to analyze the exception of “unwarranted delay,”
because the Commission accepted the exhaustion of domestic remedies based on this
exception. In fact, in its Admissibility Report, the Inter-American Commission considered
that this exception was admissible in light of the following considerations: 140
87.
In this respect, the Commission observes that while the motion for nullity filed on November 8,
2005, could have been resolved without the presence of Allan Brewer Carías, the physical absence of
the accused in fact impeded the holding of the preliminary hearing and other procedural acts related to
his trial, as a result, the Commission does not have elements to attribute to the State an
unwarranted delay in the decision regarding the criminal proceedings as a whole. The Commission
notes, however, that the lack of resolution of the request for annulment is an indication of
delay attributable to the State with regard to the resolution of the claims concerning due process
which were included in the same appeal.
88.
As for the application of the exception to the requirement of prior exhaustion of domestic
remedies provided for in Article 46(2)(b) of the Convention, the petitioners allege that Allan Brewer
Carías has been impeded from using the remedies that should be available to the defense in a criminal
proceeding, which were arbitrarily disregarded by the Public Prosecution Service and by the judicial
system. The petitioners allege that Allan Brewer Carías has not been allowed to have access to domestic
remedies considering that there has apparently been a violation of the principle of presumption of
innocence in his case in light of statements by members of the Judiciary on the alleged guilt of the
accused; that the provisional status of prosecutors and judges involved in the case may have affected
their independence and impartiality. In addition, they refer to the impairment of due process guarantees
related to the exercise of the defense at trial, such as the right to examine and offer witnesses as well
as to have access to the file in conditions that make it possible to prepare the defense of the accused
satisfactorily. They argue that these alleged violations of access to judicial remedies with due
guarantees were questioned before the courts by means of the motion for nullity filed on November 8,
2005, which has not been resolved.
89.
The Commission notes that the claims mentioned in the preceding paragraph were filed in
the domestic courts together with the request for annulment and, consequently, must be analyzed in
that context and the analysis supra in accordance with Article 46(2)(c). As it has been already pointed
out with regard to that appeal, there has been a delay in issuing a decision, and the Commission
considers that the lapse of more than three years in deciding this appeal is a factor that falls
within the framework of the exception to the exhaustion of domestic remedies due to an
unwarranted delay (bold and underlining added).
In this case, the parties disagree as to whether the exception
contained in Article 46(2)(c) is applicable; in other words, whether there has
been an unwarranted delay. This disagreement has also focused on
determining whether the request for annulment can only be decided during
the preliminary hearing in the presence of Mr. Brewer Carías, or whether the
request can be decided without his presence, independently of the
preliminary hearing.
116.
117. In order to decide whether the acceptance of this exception to the exhaustion of
domestic remedies signified a serious error that violated the State’s right of defense, the
140
Admissibility report No. 97/09, Petition 84-07, Allan R. Brewer Carías, Venezuela, September 8, 2009 (file
of annexes to the report, appendix, tome IV, folios 3628 and 3629).
38
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