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88.
Adequate domestic remedies are those which are suitable to address an infringement of a
legal right. A number of remedies exist in the legal system of every country, but not all are
applicable in every circumstance. If a remedy is not adequate in a specific case, it obviously need
not be exhausted. A norm is meant to have an effect and should not be interpreted in such a way
as to negate its effect or lead to a result that is manifestly absurd or unreasonable. For example,
a civil proceeding specifically cited by the Government, such as a presumptive finding of death
base on disappearance, the purpose of which is to allow heirs to dispose of the estate of the
person presumed deceased or to allow the spouse to remarry, is not an adequate remedy for
finding a person or for obtaining his liberty.
89.
Likewise, the Government alleged on various opportunities that the interested parties must
request the exhumation of the cadaver found at La Montañita before the First Criminal Court of
Tegucigalpa, which is in charge of the proceedings arising from the discovery of several bodies at
that location. In this regard, the Court believes that a timely exhumation could have rendered
important evidence, but it is not a remedy which, under Article 46 (1) (a) of the Convention,
guarantees the human rights of a person presumably disappeared.
90.
Of the remedies cited by the Government, habeas corpus would be the normal means of
finding a person presumably detained by the authorities, of ascertaining whether he is legally
detained and, given the case, of obtaining his liberty.
The other remedies cited by the
Government are either for reviewing a decision within an inchoate proceeding (such as those of
appeal or cassation) or are addressed to other objectives. If, however, as the Government has
stated, the writ of habeas corpus requires the identification of the place of detention and the
authority ordering the detention, it would not be adequate for finding a person clandestinely held
by State officials, since in such cases there is only hearsay evidence of the detention, and the
whereabouts of the victim is unknown.
91.
A remedy must also be effective --that is, capable of producing the result for which it was
designed. Procedural requirements can make the remedy of habeas corpus ineffective: if it is
powerless to compel the authorities; if it presents a danger to those who invoke it; or if it is not
impartially applied.
92.
On the other hand, contrary to the Commission's argument, the mere fact that a domestic
remedy does not produce a result favorable to the petitioner does not in and of itself demonstrate
the inexistence or exhaustion of all effective domestic remedies. For example, the petitioner may
not have invoked the appropriate remedy in a timely fashion.
93.
It is a different matter, however, when it is shown that remedies are denied for trivial
reasons or without an examination of the merits, or if there is proof of the existence of a practice
or policy ordered or tolerated by the government, the effect of which is to impede certain persons
from invoking internal remedies that would normally be available to others. In such cases, resort
to those remedies becomes a senseless formality. The exceptions of Article 46 (2) would be fully
applicable in those situations and would discharge the obligation to exhaust internal remedies
since they cannot fulfill their objective in that case.
94.
In the Government's opinion, a writ of habeas corpus does not exhaust the remedies of the
Honduran legal system because there are other remedies, both ordinary and extraordinary, such
as appeal, cassation, and extraordinary writ of amparo, as well as the civil remedy of a
presumptive finding of death. In addition, in criminal procedures parties may use whatever
evidence they choose.
With respect to the cases of disappearances mentioned by the
Commission, the Government stated that it had initiated some investigations and had opened
others on the basis of complaints, and that the proceedings remain pending until those presumed
responsible, either as principals or accomplices, are identified or apprehended.