petitioners allege that the judges of control of guarantees who ruled in favor of the defense or
sought to rectify violations of due process allegedly committed during the investigation phase
were replaced.
95. The Commission observes that, in response to the allegations made by the petitioners, the
State has not indicated the most effective remedies to question the assignment or removal of
judges. In fact, it should be pointed out that the remedies usually available to the defense, such
as recusal, are not suitable to question the provisional appointments of judges assigned to the
proceeding or their removal because of their performance. The Commission finds that the
removal of several provisional judges in the present case, after rendering decisions regarding
the situation of the alleged victim, may have affected his access to domestic remedies and,
therefore, this aspect of the claim should be exempt from the requirement being analyzed.
96. Therefore, considering its analysis of the arguments and information presented by the
parties, the Commission concludes that the claims regarding the alleged violations of Articles
1.1, 2, 8 and 25 must be exempt from exhausting domestic remedies before resorting to the
inter-American system for protection in accordance with the provisions of Article 46(2)(b) and
(c) of the American Convention. The allegations presented by the petitioners with regard to
Articles 7, 11, 13, 22 and 24 are closely linked to the claims presented regarding Articles 8 and
25, and will be analyzed more specifically in section 4infra.
97. The Commission reiterates that the claim of the exceptions to the requirement of exhaustion
of domestic remedies established in Article 46(2) of the Convention is closely linked to the
determination of possible violations of certain rights enshrined in the Convention, such as the
guarantee of access to justice. Nonetheless, Article 46(2) of the American Convention, by its
nature and object, is a norm with autonomous content, vis à visthe substantive norms of the
Convention. Therefore, the determination of whether the exceptions to the rule of exhaustion of
domestic remedies apply in the case in question must be made prior to and separate from the
analysis on the merits of the case, since they must meet a different standard of measure than
the one used to determine the violation of Articles 8 and 25 of the Convention. It should be
pointed out that the causes and effects that have prevented the exhaustion of domestic remedies
in the present case will be analyzed, where relevant, in the report adopted by the Commission
on the merits of the controversy in order to confirm whether they actually constitute violations
of the American Convention.
2.
Date of submission of the petition
98. The American Convention establishes that for a petition to be admissible by the Commission,
it must be submitted within six months from the date on which the allegedly injured person has
been given notice of the final decision. In the claim under analysis, the IACHR has established
that the exception to the prior exhaustion requirement provided for at Article 46(2)(b) of the
American Convention applies. In this respect, Article 32 of the Commission’s Rules of Procedure
establishes that in those cases in which the exceptions to the exhaustion of domestic remedies
apply, the petition must be submitted within a time the Commission considers reasonable. To
that end, the Commission must consider the date on which the alleged violations of rights are
said to have taken place, and the circumstances of each case.
99. In the instant case, the petition was received on January 24, 2007, and the facts that led to
the claim began in 2002, and their effects continue to the present day. Therefore, in view of the
context and the characteristics of the instant case, the Commission considers that the petition
of the Caracas Metropolitan Area informing him of the alleged obstruction by the Sixth National Prosecutor's Office,
under the responsibility of Dr. Luisa Ortega Díaz who handles the case against Mr. Carmona Estanga, et al. Dr. Ortega
Díaz had not informed the Tribunal on the time set by the Public Ministry to present –six months since the identification
of those accused– its concluding act. She had also requested that the Ministry “take on an objective attitude, leading to
collaborating and not obstructing the actions of the competent body.” Additionally, on May 11, 2005, this same
suspended judge instructed the Sixth Prosecutor's Office of the Public Ministry to provide access to the totality of the
evidence existing in the file and the videos showing the relationship with the case in which Allan Brewer Carías is accused.
Annex to the original petition received on January 24, 2007, para.56.
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