5 13. The Commission noted that the criminal complaint referred to by the State was filed after the adoption of the Report on Admissibility and Merits, in which the Commission had already taken into account the arguments of the State and in which it considered that it was appropriate to apply the exception to the rule of exhaustion under the terms of Article 46(2)(b) and (c) of the Convention. It alleged that the reference to a new complaint made by the State is "excessively vague, groundless and inadmissible”, given the fact that the State had timely access to the remedies and had the opportunity to settle the situation before the matter was submitted before the Inter-American system. According to the Commission, the State has the burden of proof regarding the arguments on the preliminary objection and the State failed to prove that the injured party had the suitable and necessary remedies to settle the case at the domestic level. Moreover, the Commission indicated that the argument of the State regarding the criminal proceeding that is pending and was recently instituted, is admissible after 15 years of the occurrence of the facts and that it only proves that the petitioners had no suitable remedies to settle the case in due time. Based on the foregoing, the Commission considered that the preliminary objection raised "is groundless" and must be rejected. 14. In addition, the representatives held that the Court must reject the preliminary objection since the Commission has already conducted an examination of admissibility in accordance with Articles 46 and 47 of the Convention. According to them, once such examination is conducted, and in order to obtain legal certainty and procedural safety, the principle of procedural preclusion operates, which even though it is not absolute, it means that the decision of the Commission "is final and indivisible.” Moreover, they alleged that the State “did […] not raise the [preliminary objection] in due time, nor has it properly based and proved its claim, inasmuch as it was inconsistent regarding the grounds of the claim during the processing of the case before the Commission and then the Court, by raising the objection based on different reasons. They held that the State did not mention any of the specific remedies that it considers the alleged victims and their representatives have failed to exhaust, nor has it proved said remedies to be adequate. They considered that the formal filing of the criminal complaint is an exclusive power of the Public Prosecutor’s Office and it does not constitute a remedy that the petitioners can access or exhaust. Without detriment to the foregoing, they highlighted that there has been an unwarranted delay in the substantiation of the available remedies on the part of the State, which was determined by the Commission and acknowledged by the State itself and which exonerates the petitioners from exhausting them. Nevertheless, the next-of-kin “have exhausted all existing remedies and instances to expedite the investigation into the facts and to try and punish the responsible.” 15. The Court has already developed clear guidelines for the analysis of the rule of exhaustion of domestic remedies, considering the respective formal and material conditions to analyze in each case.6 16. In the instant case, the Court notes that the argumentative basis used by the State to raise such preliminary objection before the Court is different regarding what was alleged in the proceeding before the Inter-American Commission. On the one hand, before this Tribunal, the State claims that the formal filing of the criminal complaint in December 2008 and the opening of the investigation must be considered 6 Cf. Case of Velásquez Rodríguez V. Honduras. Preliminary Objections. Judgment of June 26, 1987. Series C No. 1, para. 88 and Case of Escher et al. V. Brazil. Preliminary Objections, Merits, Reparations and Costs. Judgment of July 6, 2009. Series C No. 199, para. 28; Case of Perozo et al. V. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of January 28, 2009. Series C No. 195, para. 42 and Case of Ríos et al. V. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of January 28, 2009. Series C No. 194, para. 37.

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