67. Article 46(2) of the Convention provides that the requirement of prior exhaustion of domestic remedies is not 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; (b) the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or (c) there has been unwarranted delay in rendering a final judgment under the aforementioned remedies. 68. As the Inter-American Court has established, whenever a State alleges failure to exhaust domestic remedies, it bears the burden of showing that the domestic remedies not exhausted are “suitable” to cure the violation alleged; in other words, that the operation of those remedies is suitable for protecting the legal situation that has been infringed. 38 69. In the instant case, the State alleges that the petition does not satisfy the requirement of prior exhaustion of domestic remedies, provided for at Article 46 of the American Convention and Article 32 of the Commission’s Rules of Procedure, given that there is a criminal proceeding pending into the facts that are the subject matter of the claim. 39 70. The petitioners allege that in the instant case there has been unwarranted delay, due to the fact that the survivors of the Community of Río Negro have been waiting for approximately 13 years for the conclusion of the investigations into the massacres in which members of the Community of Río Negro were victims. 71. In relation to the facts alleged, according to the information provided by the parties and the documents that appear in the record, several complaints were filed with the Guatemalan judicial authorities, giving rise to a series of investigations that led to trials of some of the alleged direct perpetrators. 72. It appears in the record that on July 6, 1993, a formal complaint was lodged alleging the existence of a clandestine cemetery in the community of Río Negro containing the remains of the victims of the March 13, 1982 massacre. 40 On July 13, 1993, the complaint was ratified and amended before the Criminal Court of First Instance of Salamá, Baja Verapaz, and on August 13, 1993, an investigation was formally launched 41 in case 722-93. 42 73. On October 13, 1994, at the headquarters of the Office of the Procurator General (Procuraduría General de la Nación), Mr. Víctor Mendoza Sic came forward to denounce the massacre that occurred in the community of Agua Fría on September 14, 1982 43, and on October 19, 1994, the Secretary General of the Office of the Procurator General asked the Attorney General and Chief of the Public Ministry to send instructions to initiate the respective investigation, based on Articles 289 and 298 of the Code of Criminal Procedure, and case 471- 38 I/A Court H.R., Velásquez Rodríguez Case, Judgment of July 29, 1988, para. 64. In its response to the complaint the State noted as follows: “Considering that to date the injured persons have not been notified of any final decision exhausting domestic remedies, the government of the Republic of Guatemala asks the Inter-American Commission on Human Rights to allow it to continue with the steps to apprehend Col. José Antonio Solares, with the aim of continuing with the trials and reaching a conviction if found guilty, as a result of the efforts that are being made by the competent authorities to carry out the arrest warrant.” See State’s brief of July 10, 2006, conclusions, page 7. 40 In 1994 the courts ordered the exhumation of the remains found in the community of Río Negro and the forensic anthropology report established that the human remains found were of at least 143 persons. 41 See in: Criminal Court of First Instance of Salamá, Baja Verapaz. Resolution of August 13, 1993. Criminal Case No. No. 722-93. Document in the record. 42 Case 722-93 was joined with Case 471-94, in which the events in the community of Agua Fría were being investigated. 43 Office of the Attorney General of the Republic and the Public Ministry, complaint submitted by Mr. Víctor Mendoza Sic, in relation to the massacres that took place on September 13 and 14 at the Agua Fría farm. Document is in the record. In his complaint, Mr. Mendoza states as follows: ”FIRST: On May 20 of the current year, he filed a complaint with the Office of Human Rights (Auxiliatura de Derechos Humanos) of Salamá, Baja Verapaz; on the massacres that occurred the 13th and 14th of September, 1982, Agua Fría farm, Río Negro, Rabinal, Baja Verapaz , in which approximately 80 persons died.” Document is in the record. 39 15