may seek a review of the conviction before the competent court, invoking, in each case, the grievance and the
factual and legal aspects that could not be heard in cassation. 37
47.
In this regard, the Commission considered in its Admissibility Report that, “subsequent
to the coming into force of Law 8503, the remedies available to the alleged victims –appeal
[casación] and review - were limited in scope and did not offer a comprehensive examination
because of the rules that governed them.” However, it did not specify what those rules were
or how they would limit the petitioners’ rights to a comprehensive review of their conviction.
48.
Before this Court, both the Commission and the common interveners have argued that
the motion for review did not offer a comprehensive remedy to the alleged victims because it
was an exceptional remedy that only operated once the criminal convictions became final.
However, the special review remedy contemplated in transitory provision I of Law 8503 of
2006 was enacted specifically for the purpose of resolving the situation of persons with final
convictions, who had been “prevented from filing an appeal in cassation against the
conviction, because of the rules that governed its admissibility at that time,” allowing them
to invoke “the grievance and the aspects of fact and law that could not be heard in cassation.”
Given that this remedy was specifically intended for persons with final convictions, the fact
that it is an exceptional remedy cannot be decisive, per se, to conclude that is it ineffective.
Thus, in view of the State’s arguments regarding the special remedy of review available as of
June 6, 2006, a case-by-case analysis was required in order to verify whether, in each specific
case, said remedy would have provided the alleged victims with the possibility of a
comprehensive review of their conviction. It should be noted that, as stated in this Court’s
order of July 9, 2009 on monitoring compliance in the case of Herrera Ulloa, the Commission
itself indicated that the effectiveness of Law of 8503 should be assessed “based on the
application of the new model to specific cases.” 38
49.
Thus, the Court considers that, for the purposes of exhausting domestic remedies, the
eight groups of alleged victims should have filed a special motion for review based on
transitory provision I of Law 8503 of 2006 during the admissibility proceedings before the
Commission.
50.
On this matter, the Court notes, first of all, that the alleged victims of Group 1, Manfred
Amrhein Pinto et al., did not file any motion for review prior to the issuance of the Admissibility
Report. Moreover, of the two individuals in Group 5, Martín Rojas Hernández and Guillermo
Rodríguez Silva, the former did not file any motions for review while the latter filed one motion
for review on July 22, 2011, 39 the same date on which the admissibility of the case was
decided. In other words, by the time the admissibility decision was made, this remedy had
not been filed, decided or brought to the attention of the Commission. Therefore, with respect
to Groups 1 and 5, the State’s objection is declared admissible.
51.
Second, the Court notes that the following groups of alleged victims filed motions for
review during the proceedings before the Commission, but not on the basis of transitory
provision I of Law 8503: Group 7, Miguel Mora Calvo, in one of his two cases, No. 99-003994-
Cf. Law N°8503. Law on the Opening of Cassation, annexes 1 to the State’s answering brief. (evidence
file, folios 28473 and 28478).
38
Cf. Order of the Court of July 9, 2009 in the case Herrera Ulloa, Considering paragraph 23.
39
Cf. Guillermo Rodríguez Silva, in file No. 04-002096-042-PE, filed a motion for review on July 22, 2011,
the date of the decision on admissibility of the case before the Inter-American Commission of Human Rights
(evidence file, folios 2485/35380).
37
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