98.
When a specific proceeding has stages during which it is possible to correct or to
rectify certain kinds of irregularities, States should be able to take advantage of the said
procedural stages to rectify the alleged irregularities in the domestic sphere, without
prejudice to the possible analysis required of the exception to the prior exhaustion of
domestic remedies established in Article 46(2) of the Convention. It is precisely following
the conclusion of an intermediate stage, or during the trial, that the existence of the said
irregularities may be declared and the annulment of the entire proceedings or their
restructuring as pertinent be admissible. This has greater relevance in the instant case
when it is considered that the requests for a declaration of nullity referred to some of the
arguments that have been presented before this Court concerning the presumed violation of
judicial independence and impartiality, the right of defense, disputes regarding the evidence
that had been rejected, possibilities of cross-examination or being present during certain
testimonies, or amendments to the charges, among other judicial guarantees.
99.
Based on the above, the Court considers that the representatives’ arguments that
the said briefs were adequate and sufficient to satisfy the requirement established in Article
46(1)(a) of the American Convention are not admissible. In addition, in the specific context
of the disputes on admissibility in this case, and owing to the stage that the proceedings are
at, it is not possible to determine the effectiveness of the remedies indicated by the State
because, to date, they have not been used. Given that the Commission focused its analysis
of admissibility on the exceptions to the exhaustion of domestic remedies, the Court will
now analyze whether the said exceptions are admissible in this case.
B.3.3 Exceptions to prior exhaustion of domestic remedies (Article 46(2) of the
American Convention)
100. Article 46(2) of the Convention establishes 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. In this regard, the Court has indicated that it is not necessary to exhaust ineffective
remedies:
[F]or such a remedy to exist, it is not sufficient that it be provided for by the Constitution or by law or
that it be formally recognized, but rather it must be truly effective in establishing whether there has
been a violation of human rights and in providing redress. A remedy which proves illusory because of
the general conditions prevailing in the country, or even in the particular circumstances of a given
case, cannot be considered effective. That could be the case, for example, when practice has shown
its ineffectiveness: when the Judicial Power lacks the necessary independence to render impartial
decisions or the means to carry out its judgments; or in any other situation that constitutes a denial
of justice, as when there is an unwarranted delay in the decision; or when, for any reason, the alleged
victim is denied access to a judicial remedy. 127
101. The Court agrees with the Inter-American Commission’s observation
Admissibility Report in this case that the citing of the exceptions to the rule
exhaustion of domestic remedies established in Article 46(2) of the Convention is
related to the determination of possible violations of certain rights recognized
127
in the
of the
closely
in this
“Judicial Guarantees in States of Emergency (Arts. 27.2 25 and 8 of the American Convention on Human
Rights)”. Advisory Opinion OC–9/87 of October 6, 1987. Series A No. 9, para. 24.
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