33
unpredictable exercise,” since the “crimes charged by the accuser are
irrelevant,” as confirmed by the experts who testified in the public hearing
held by the Court;
k)
an action challenging constitutionality is not an ordinary remedy, but a
very specific action different from all other domestic remedies; the proceeding
involved is costly, difficult and lengthy;
l)
applying the State’s interpretation, the argument that an action
challenging constitutionality must be filed in order for domestic remedies to
be considered pursued and exhausted would mean that cases where the
sentencing court orders damages that are irreparable for the alleged victims
could not be brought to the Commission or to the Court if those court rulings
are enforced. In effect, to file an action challenging constitutionality in Costa
Rica, a case must still be pending with the courts;
m)
the alleged victims could not have required to file an action challenging
the constitutionality of their conviction to exhaust domestic remedies before
turning to the inter-American system since, under Article 10 of Costa Rica’s
Constitution, actions challenging the constitutionality of convictions are
impermissible;
n)
an action challenging constitutionality is not a remedy that must be
pursued and exhausted in accordance with Article 46(1) of the Convention,
because it is not an ordinary remedy under generally accepted principles of
international law and is not an effective remedy for purposes of protecting the
violated rights;
o)
under Costa Rican criminal procedural law, a petition seeking review is
only permitted when, in case ending in a conviction, some right of defense
per se is said to have been violated. Therefore, under Costa Rican procedural
law, a violation of any other aspect covered under the guarantee of due
process cannot be protected by filing for habeas corpus relief, pursuant to
Article 408.g of the Costa Rican Code of Criminal Procedure;
p)
in Mr. Herrera Ulloa’s case, the violations of due process alleged in the
brief of pleadings, motions and evidence that the alleged victims’
representatives filed with the Inter-American Court are threefold, namely: a)
the right to appeal a judgment to a higher court; b) the right to a hearing by
an impartial court or judge; and c) the right to be presumed innocent.
Violation of Mr. Herrera Ulloa’s right of defense has not been claimed. His
circumstances were such that he did not have standing to file an appeal
seeking review of the guilty verdict;
q)
in the instant case, the one remedy allowed against the guilty verdict
delivered by the Criminal Court of the First Judicial Circuit of San José,
namely the remedy of cassation, was pursued and exhausted;
r)
none of the remedies that the State mentioned in its brief answering
the application and its observations on the brief of pleadings, motions and
evidence rises to the standards of adequacy and effectiveness that the
Convention and general international law require in order for the exception
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