opportune procedural stage; 13 namely, during the initial stages of the admissibility procedure
before the Commission. 14 Consequently, it is understood that, following this opportune
procedural stage, the principle of procedural preclusion comes into effect. 15 Furthermore,
when arguing the failure to exhaust domestic remedies, the State must indicate on that
occasion the remedies that must be exhausted and their effectiveness. 16 The Inter-American
Court has found that the interpretation it has given to Article 46(1)(a) of the American
Convention for more than two decades is in keeping with international law. 17
38.
As the Inter-American Court has stated consistently, “for a preliminary objection of
the failure to exhaust domestic remedies to be admissible, the State that presents this
objection must specify the domestic remedies that have not yet been exhausted, and prove
that these remedies are available and were adequate, appropriate and effective” 18
(underlining added).
39.
In this specific case, during the admissibility stage before the Inter-American
Commission, the State did not make any observation on the requests for a declaration of
the absolute nullity of the proceedings based on violations of fundamental rights – dated
October 4 and November 8, 2005 – or, in particular, indicate why the said remedies are not
adequate, appropriate and effective; merely indicating, in general, all the remedies that
exist in criminal proceedings under Venezuelan law. Consequently, we consider that it is
evident that the Court’s consistent case on this matter should have been followed, because
“when arguing the failure to exhaust domestic remedies, the State must indicate at the
proper opportunity, the remedies that must be exhausted and their effectiveness. 19 Thus, it
is not the task of the Court, or of the Commission, to identify, ex officio, the domestic
remedies that remain to be exhausted. The Court emphasizes that it is not incumbent on
the international organs to rectify the lack of precision of the State’s arguments.” 20
2.1.b The appropriateness of the remedies in this case
40.
Second, regarding the majority opinion that appeals for a declaration of nullity are
not appropriate remedies, we observe, first, that the representatives of Allan Brewer Carías
13
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections. Judgment of June 26, 1987. Series C
No. 1, para. 88, and Case of Mémoli v. Argentina. Preliminary objections, merits, reparations and costs. Judgment
of August 22, 2013. Series C No. 265, para. 47.
14
Cf. Case of Herrera Ulloa v. Costa Rica. Preliminary objections, merits, reparations and costs. Judgment of
July 2, 2004. Series C No. 107, para. 81, and Case of Mémoli v. Argentina. Preliminary objections, merits,
reparations and costs. Judgment of August 22, 2013. Series C No. 265, para. 47.
15
Case of Mémoli v. Argentina. Preliminary objections, merits, reparations and costs. Judgment of August
22, 2013. Series C No. 265, para. 47.
16
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections. Judgment of June 26, 1987. Series C
No. 1, paras. 88 and 91, and Case of Mémoli v. Argentina. Preliminary objections, merits, reparations and costs.
Judgment of August 22, 2013. Series C No. 265, paras.46 and 47.
17
Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations.
Judgment of November 30, 2012. Series C No. 259, para. 34.
18
Cf. Case of Velásquez Rodríguez. v. Honduras. Preliminary objections. Judgment of June 26, 1987. Series
C No. 1, paras. 88 and 91, and Case of Mémoli, Preliminary objections, merits, reparations and costs. Judgment of
August 22, 2013. Series C No. 265, paras. 46 and 47.
19
Cf. Case of Velásquez Rodríguez. Preliminary objections. Judgment of June 26, 1987. Series C No. 1, para.
88, and Case of Mémoli v. Argentina, Preliminary objections, merits, reparations and costs. Judgment of August 22,
2013. Series C No. 1, para. 47.
20
Cf. Case of Reverón Trujillo v. Venezuela. Preliminary objection, merits, reparations and costs. Judgment of
June 30, 2009. Series C No. 197, para. 23, and Case of Artavia Murillo et al. (In vitro fertilization) v. Costa Rica.
Preliminary objections, merits, reparations and costs. Judgment of November 28, 2012 Series C No. 257, para. 23.
8
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