14
57.
The Government adds that the Colombian legal system provides for concrete, efficacious actions that
could resolve the matter, among them: penal action, the purpose of which is to establish whether criminal
law was violated by individuals or agents of the State; and, action under administrative law, directed against
the State as a legal entity to ensure compliance with the law by means of compensation for damages
resulting from actions attributed to its agents.
58.
The Commission, for its part, holds that habeas corpus is an internationally recognized right.
Consequently, it should not be different in each country, as the Government claims, for that would imply an
evident breach of Article 2 of the Convention, which orders the States Parties to adopt legislative or other
measures aimed at giving effect to the rights and freedoms proclaimed therein. As a result, despite the fact
that habeas corpus is theoretically the ideal remedy to redress the violation, if it offers no assurance of
effectiveness, as the Government contends, it would not be necessary to exhaust it, as provided in the
exceptions listed in Article 46(2) of the Convention.
59.
In addition, the Commission notes that the relatives of Isidro Caballero also had recourse to the
ordinary and military criminal jurisdictions and to the Office of the Attorney General in seeking the
investigation of the case and the application of penalties and disciplinary sanctions on those responsible for
his disappearance. These actions did not produce any effective results. All of these measures carried out by
the relatives of Isidro Caballero, as well as others of an extrajudicial nature, must not be seen as remedies
that have to be exhausted before turning to the Commission. Nevertheless, they were attempted and
illustrate their determination to exhaust all existing possibilities.
60.
The Commission argues, furthermore, that according to the European Court of Human Rights
objections of inadmissibility that have not been specifically invoked in timely fashion by the Government
should not be examined by the Court, since the time-limit for presentation by the Government has
expired; in addition, the time to raise these objections is at the very start of proceedings before the
Commission, that is, at the stage of initial examination of admissibility, unless it proves impossible to
interpose them at the appropriate time for reasons that cannot be attributed to the Government. (Eur.
Court H.R., Artico judgment of 13 May 1980, Series A No. 37, paras. 23 et seq.)
and that “the State claiming non-exhaustion has an obligation to prove that domestic remedies
remain to be exhausted and that they are effective” (Velásquez Rodríguez Case, Preliminary
Objections, supra 26, para. 88; Fairén Garbi and Solís Corrales Case, Preliminary
Objections, supra 26, para. 87; and, Godínez Cruz Case, Preliminary Objections, supra
26, para. 90).
61.
Finally, the Commission affirms that, as Report Nº 31/91 indicates, it is obvious that the
petitioners have been unable to secure effective protection from the domestic judicial organs.
Consequently, the Government cannot plead non-exhaustion of the remedies under Colombian
law because the investigation of the facts denounced has not produced results, which the
Government itself has admitted in its request for reconsideration dated January 16, 1992.
62.
The Court believes that the fundamental issue that arises with respect to this preliminary
objection is the definition of the domestic remedies that must be exhausted prior to lodging the
petition with the Commission, pursuant to the provisions of Article 46(1) of the Convention.
63.
The Court has already stated that:
Article 46(1)(a) of the Convention speaks of ‘generally recognized principles of international law.’ Those
principles refer not only to the formal existence of such remedies, but also to their adequacy and
effectiveness, as shown by the exceptions set out in Article 46(2).
Adequate domestic remedies are those which are suitable to address an infringement of a legal right. A
number of 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. A
norm is meant to have an effect and should not be interpreted in such a way as to negate its effect or