12 not held within the prescribed time, the parties may invoke such disciplinary actions as may be appropriate against the person responsible for the failure of the hearing to be held. 62. The State also cites Article 328 of the COPP of 2005 and 2009, which provides the accused with the possibility of invoking a series of procedural acts, such as filing objections, motions for revocation of precautionary measures, and motions to suspend, among others. In this regard, the State considers that the petitioners still have a number of remedies pending which, if used, would give rise to actions that they could invoke to uphold their rights. 63. The State argues that in spite of all the remedies at their disposal, the petitioners seek to violate the complementary nature of the inter-American human rights system with an argument concerning the exceptions to the rule of exhaustion of domestic remedies. It says that it "does not understand if this is due to abject ignorance or bad faith taken to the extreme.” a. Contentions regarding the request for the annulment of the proceedings 64. The State claims that it is absurd and malicious of the petitioners “to tell the Commission that the request for the annulment of the entire investigation and the proceedings can be resolved without the presence of the accused, when those requests were made in a document responding to the accusation and are the logical consequence of the arguments of the defense ‘to reject all parts of the proceedings, as regards the considerations of both fact and law.’” It holds that if the defense is responding to the accusation, then that is because it is exercising its powers and authority set out in 12 Article 328 of the COPP and it would fall to the judge, in the presence of all the parties, including the 13 14 accused, to resolve the requests made by each, as provided for in Article 330 of the COPP. It maintains that the request for annulment is contained in the response to the accusation and is not, as the petitioners claim, an autonomous request that can be resolved in the absence of the accused, in that it does not address incidental matters that affect rights but is instead a request that bears on the merits and 15 essence of the preliminary hearing itself and, as such, must be resolved in the presence of the parties in order to avoid abridging their rights. 65. The State maintains that the Commission is in error in equating the reply to the Public Prosecution Service’s accusations and petitions to an improperly termed remedy for annulment – a term that does not exist since these are correctly spoken of as forms of challenges and nullifications as established in Articles 190 et seq. of the COPP, which represent the ways in which the petitioners can file 12 The State cites the COPP, published in the Official Gazette of the Republic of Venezuela, special edition No. 5.930, September 4, 2009. Submission from the Ministry of Popular Power for Foreign Affairs No. AGEV/000530 of November 17, 2009. 13 To support its arguments, the State cites: Constitutional Chamber of the Supreme Court of Justice, Case No. 09-0173, decision of October 19, 2009: “[…] that the threat or violation of constitutional rights alleged by the plaintiff is not actionable by the Fourth Control Judge, in that ‘said judge may only rule on the accused’s request at the preliminary hearing […] the ruling sought by the plaintiff for the annulment of the prosecutor’s indictment may only be given at the preliminary hearing, which has not taken place due to the defendant’s failure to appear’ […] Regarding the failure to rule on requests for ‘…joinders, annulments, and amended pleadings…’, in this Chamber’s opinion such requests should be resolved at the preliminary hearing, as stipulated in Article 330 of the Organic Code of Criminal Procedure; for that reason, the purported threat to or violation of constitutional rights alleged by the plaintiff is not actionable by the Fourth Control Court […], in that said court may only rule on the accused’s request at the preliminary hearing […].” (State’s emphasis). Submission from the Ministry of Popular Power for Foreign Affairs No. AGEV/000530 of November 17, 2009, pp. 44 and 45. 14 The State cites the COPP, published in the Official Gazette of the Republic of Venezuela, special edition No. 5.930, September 4, 2009. Submission from the Ministry of Popular Power for Foreign Affairs No. AGEV/000530 of November 17, 2009. 15 To support its arguments, the State cites: Constitutional Chamber of the Supreme Court of Justice, No. 01-2304, decision of November 16, 2001: “Note that calling a preliminary hearing does not presuppose the existence of a violation of the plaintiff’s right of personal security and right of defense, since it is at the preliminary hearing that the control judge determines the procedural viability of the prosecutor’s indictment, upon which the existence or otherwise of the oral proceedings will depend. In other words, the preliminary hearing determines the object of the trial – through an examination of the materials offered by the prosecution service – and whether the involvement of the defendant in the facts with which he is charged is ‘probable’; thus, the holding of such a hearing in no way harmed the defendant in the main proceedings […].” Submission from the Ministry of Popular Power for Foreign Affairs No. AGEV/000530 of November 17, 2009, pp. 43 and 44.