1. Exhaustion of remedies under domestic law 51. Article 46 of the American Convention provides the following: 1. Admission by the Commission of a petition or communication lodged in accordance with Articles 44 or 45 shall be subject to the following requirements: a.that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law; b. that the petition or communication is lodged within a period of six months from the date on which the party alleging violation of his rights was notified of the final judgment; (.) 2. The provisions of paragraphs 1.a and 1.b of this Article shall not be applicable when: a.the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated; (..) c.there has been unwarranted delay in rendering a final judgment under the aforementioned remedies. 52. The Article cited above requires exhaustion of the remedies under domestic law, in accordance with generally recognized principles of international law. The case law of the InterAmerican Court of Human Rights has established that the rule requiring exhaustion of domestic remedies is for the State’s benefit and hence it may waive the rule either expressly or by implication. The objection asserting non-exhaustion of domestic remedies, to be timely, must be made early in the Commission’s proceedings, lest waiver of the rule be presumed; merely submitting information on the progress of domestic court proceedings is not the same as expressly invoking the ruling requiring exhaustion of domestic remedies. 4 53. In the petition under study, the Commission observes that in its first response, the State built its case for the inadmissibility of the petition on the grounds that a criminal case about these facts was pending in the domestic courts. Hence, the Commission believes that the conditions attending the exhaustion of domestic remedies need to be examined, first in the case of the proceedings conducted in the military criminal courts and then the investigations and proceedings in the civilian courts. All this to determine how effective they might be. 54. The State has reported that on December 18, 1996, the day after the Japanese Ambassador’s residence was taken over by the MRTA subversives, the Special Military Prosecutor filed a complaint, whereupon the Special Military Tribunal assigned jurisdiction to the Army Court-Martial. The latter named a Special Ad Hoc Military Criminal Judge to preside over the case, who instituted proceedings against Néstor Cerpa Cartolini and others for the crime of treason. Hence, when the events occurred at the Embassy residence, their investigation was alleged to have been under the jurisdiction of the military criminal justice system right from the start. 55. But the petitioners assert that that information is not correct. They claim that on April 22, 1997, when the “Chavín de Huántar” operation was conducted to retake the Ambassador’s residence, a military judge gave the order to send the bodies not to the Institute of Forensic Medicine, as should have been done, but to the Police Hospital instead. There, partial autopsies 4 Inter-American Court of Human Rights, Castillo Páez Case, Preliminary Objections. Judgment of January 30, 1996, par. 40; Loayza Tamayo Case, Preliminary Objections, Judgment of January 31, 1996, par. 40; Castillo Petruzzi Case, Preliminary Objections, Judgment of September 4, 1998, par. 56; Comunidad Mayagna (Sumo) Awas Tingi Case, Judgment of February 1, 2000, paragraphs 54 to 56. 9