the supposed failure to exhaust domestic remedies 7, said argument is subsumed in the argument indicated in paragraph b), which will be addressed by the Court in this chapter. A) Preliminary objection regarding failure to exhaust domestic remedies A.1. Arguments of the parties and of the Commission 17. The State pointed out that, in this case, the criminal proceedings are still in the investigation stage, and therefore the petitioners would need to prove that the exceptions contemplated in Article 46(2) of the Convention are applicable. According to the State, these exceptions do not apply in this case. It argued that the exception contemplated in Article 46(2) (a) does not apply, because the State has a juridical structure that affords protection, guarantees, judgment and punishment. The exception contemplated in Article 46(2) (b) does not apply, since at no time during the substantiation of the judicial process and the investigation did the State deny access by A.A.’s family to [remedies] whereby they could advance, assist, promote and exercise control of the investigation process. Nor does the exception contemplated in Article 46(2) (c) apply, since several procedures were carried out in the domestic investigations to clarify the facts, even though “the State has not been able to proceed to a trial […].” It added that, in the event of an unwarranted delay occurring in the processing of criminal cases, the domestic legislation affords alleged victims a number of rights and controls which they can use to “advance the investigation and/or judicial process, and prevent an unwarranted delay in criminal cases.” Regarding the criminal procedural rules, it indicated that certain reforms were incorporated with the aim of strengthening the justice system and granting victims a number of rights and instruments enabling them to speed up criminal proceedings (including Decrees 18-2010 and 7-2011 of the National Congress). 18. The Commission held that the State’s objection was invalid. It argued, in the first place, that although the State had raised the objection in its initial briefs, in a subsequent brief, also submitted before the Commission, it indicated that “even though the domestic remedies of legal due process have not yet been exhausted, the State upon recognizing that there has not been substantial progress [,] cannot oppose family [A.’s] petition.” According to the Commission, the State reiterated this point in five subsequent briefs, several of which indicated that this position would not affect its possible defense in the merits stage. Consequently, it would be appropriate to apply the principles of tacit withdrawal and estoppel to this objection. Secondly, the Commission explained that, in its Admissibility Report 109/10, it concluded that the exception of unwarranted delay established in Article 46(2)(c) of the Convention was applicable, bearing in mind numerous signs indicative of the presumed lack of effectiveness of the domestic remedies. Third, the Commission pointed out that the first time the State had mentioned the argument regarding the remedies for “activating” the criminal proceedings, derived from Decree 51-92, was in its answer brief before the Court, which would mean it was timebarred. Finally, it considered that by using this argument, the State sought to transfer to the victims the burden of supervising and trying to move forward the investigations into the case, which would be contrary to the State’s obligation to investigate violent deaths de officio. 19. The representatives emphasized that during the proceedings before the Commission, “the State did not oppose the petition of family [A] regarding the issuance of the Admissibility Report.” Furthermore, they asked the Court to dismiss this objection based on three types of arguments. On the one hand, they argued that although remedies were available within the domestic jurisdiction, these were not effective since the investigations into this case were neither undertaken with due diligence nor within a reasonable time. Secondly, based on the State’s failure to specify which particular domestic remedies were not exhausted, they asked the Court to dismiss the preliminary objection because it was time-barred. They also argued that there had been an unwarranted delay by the Guatemalan jurisdictional organs, which had been proven during the proceedings before the Commission. On this point, they referred to the State’s 7 The State held that “this matter should not have been brought before [this Court], considering that the presumed violations of rights protected by the American Convention […] alleged by the Commission and the petitioners, involve circumstances that occurred after the State of Guatemala had recognized the contentious jurisdiction of that body, [and] the domestic remedies contemplated in Guatemalan legislation have not yet been exhausted.” 8