5 1. Exhaustion of domestic remedies 25. Article 46.1.a of the American Convention requires the prior exhaustion of available domestic remedies, in accordance with generally recognized principles of international law, as a requirement for the admission of claims on an alleged violation of the Convention. 26. Article 46.2 of 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. 27. Pursuant to Article 31.3 of the Rules of Procedure of the Commission and rulings of the Inter-American Court, when a State alleges the failure of a petitioner to exhaust domestic remedies, it bears the burden of proving that the remedies that have not been exhausted are “adequate” to correct the alleged violation, i.e. that the function of those remedies within the domestic legal system is suitable to protect against the infringement of a legal right. 2 28. First, is necessary to clarify which of the domestic remedies must be exhausted in a case such as this one, in light of the legal precedents of the Inter-American system. Concretely, the Commission notes that the petitioner’s claim involves her alleged unwarranted removal from office, as Sectional Prosecutor No. 16 of Cartagena, without due process and legal reasoning. 29. The Commission notes that in order to be reinstated to her office, the petitioner pursued three avenues, which are available in the State: the labor, administrative and constitutional procedures. The Commission shall assess hereafter whether the aforementioned procedures were adequate in light of the claims, and whether, for the purposes of admissibility, they were properly exhausted. 30. Regarding the action for executive privilege of union officers against removal or transfer, that was adjudicated in the labor courts, the Commission notes that there is no dispute between the parties as it is a suitable remedy for someone who claims to have been wrongfully removed from office and meets the statutory requirements for being granted the privilege. Also there is no dispute with regard that the petitioner properly exhausted this remedy. 3 The Commission notes that on September 22, 2010, the alleged victim exhausted this remedy as for her claim to reinstatement because she believed that she was protected by trade union immunity at the time of her dismissal. 31. As regards the administrative procedure, the Commission notes that according to the argument of the State, the “action to vacate an administrative act and restore the right” is a suitable remedy to overturn an unlawful administrative act and to successfully restore the affected person’s right. Additionally, the Commission notes that there is no dispute between the parties as to the petitioner filing her complaint before this court after the statutory time period had expired. Next, the IACHR will assess whether this procedure offered an adequate remedy in light of the petitioner’s claims. 32. The IACHR notes that, according to the Constitutional Court of Colombia, an action to vacate a decision is a suitable remedy to enable an administrative judge to determine whether an administrative act, which removes a person from a temporary career position, is legal or not, after an extensive period of examination of evidence. 4 Accordingly, the IACHR notes that this remedy was suitable 2 Article 31.3 of the Rules of Procedure of the Commission. Also see I/A Court H.R., Case of Velásquez Rodríguez vs. Honduras. Judgment of July 29, 1988. Series C No. 4, para. 64. 3 In its initial submissions, the State alleged that the claim did not fulfill the prior exhaustion of domestic remedies requirement, set forth in Article 46.1 of the American Convention, because the judgment was pending on appeal before the labor court at the time that the IACHR received the petition. Once this judgment was handed down, while admissibility was being processed in this case, the State indicated that the legal remedies available to the petitioner in the domestic arena were exhausted. 4 Judgment T-884 of 2002.