1. Exhaustion of domestic remedies 21. Article 46(1) of the American Convention requires that for a petition to be admissible, the remedies available under the State's domestic jurisdiction must first have been exhausted. The petitioners argued that they were not required to exhaust any form of domestic remedy because the alleged facts of the case fell within the assumption of Article 46(2)(a), which provides an exception to the general rule when 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. The petitioners claim that for more than 20 years they were prevented from filing a motion for habeas corpus, and that when they were finally able to do so that remedy was useless, because of the length of time elapsed and the lack of governmental willingness to investigate the practice of forced disappearances. 22. The petitioners insisted that, as indicated by the IACHR in prior reports, during the conflict a widespread climate of fear prevented victims of violations from invoking their rights. Nor was effective recourse possible after the peace agreements were signed. The practice of domestic courts was to deny petitions for habeas corpus presented in cases of forced disappearance, claiming that complainants must identify the authority who had ordered the arrest. Beginning in 2002, when the Supreme Court changed its jurisprudence on the matter, petitions for habeas corpus could be lodged to initiate investigations of forced disappearances. By that time, however, investigating events that had taken place during the conflict was very difficult and required special investigative measures by state authorities, which have not been taken. 23. The State argued that the petitioners had effective judicial remedies available to them at all times. The criminal prosecution system was in place both during the conflict and subsequent to signature of the peace accords. Yet they chose not to report the event until 20 years after it occurred. Despite this fact, the Supreme Court of Justice was diligent in its handling of the motion for habeas corpus, finding that the evidence presented was insufficient to substantiate the conduct alleged. In addition, the prosecutor's office opened an investigation, which has still not been completed and has been running for only two years, a short length of time for investigating events that allegedly occurred more than two decades earlier. Moreover, the decision of the Supreme Court does not preclude the petitioners from submitting a new motion for habeas corpus, if additional evidence should come to light. 24. The Commission considers that the petitioners were prevented from pursuing domestic remedies during the time of the armed conflict, because in those years El Salvador did not have an independent judiciary, and complaints of human rights violations were notoriously ineffective.5 In some circumstances, to file complaints was a hazardous undertaking for the plaintiff. Thus, the events occurred at a time when domestic judicial remedies were inoperative, and this is especially true of motions for habeas corpus. 6 25. Subsequent to that time, the remedy of habeas corpus has remained ineffective for investigating disappearances, because the judicial authorities demanded that the appellants provide proof of the detention.7 The Commission finds that cases involving the forced In its Annual Report published at the end of the armed conflict in El Salvador, the IACHR recounted the situation that the country had experienced during the previous 12 years. It found that: El Salvador does not now enjoy –nor has it in the recent past –the kind of efficient, impartial administration of justice that is the best safeguard against impunity and an effective deterrent against crime. Throughout the armed conflict, and once it was over, human rights organizations and experts of all leanings and origins concurred on this one point. IACHR, Annual Report 1992, OAS/Ser.L/V/II.83 Doc. 14, 12 March 1993, Chapter IV, "Status of Human Rights in Several Countries: El Salvador", paras. 10 and 11. In a similar vein, the IACHR had recommended in 1984 "that the Government should urgently proceed to reform the judiciary, in order to guarantee the punishment of those responsible for human rights violations”, IACHR, Annual Report 1983-84, OAS/Ser.L/V/II.83 Doc. 10, 28 September 1994, Chapter IV, "Status of Human Rights in Several Countries: El Salvador", para. 15.e. 6 The Inter-American Commission, in referring to the situation in El Salvador during the domestic armed conflict, found that the recourse of amparo or habeas corpus had lost its effectiveness, “since the state of emergency indefinitely suspends such remedies". IACHR, Annual Report 1983-84, Ch. IV, para. 4. 7 See IACHR, Report 31/01, Case 12.132, Ernestina and Erlinda Serrano Cruz, in which the Commission decided to declare the case admissible and accepted the exception to the exhaustion of domestic remedies provided in Article 5 5