12
62.
In its Judgment of June 26, 1987, the Court decided, inter alia, that "the State claiming
non-exhaustion has an obligation to prove that domestic remedies remain to be exhausted and
that they are effective" (Godínez Cruz Case, Preliminary Objections, supra 25, para. 90).
63.
Concerning the burden of proof, the Court did not go beyond the conclusion cited in the
preceding paragraph. The Court now affirms that if a State which alleges non-exhaustion proves
the existence of specific domestic remedies that should have been utilized, the opposing party has
the burden of showing that those remedies were exhausted or that the case comes within the
exceptions of Article 46 (2). It must not be rashly presumed that a State Party to the Convention
has failed to comply with its obligation to provide effective domestic remedies.
64.
The rule of prior exhaustion of domestic remedies allows the State to resolve the problem
under its internal law before being confronted with an international proceeding.
This is
particularly true in the international jurisdiction of human rights, because the latter reinforces or
complements the domestic jurisdiction (American Convention, Preamble).
65.
It is a legal duty of the States to provide such remedies, as this Court indicated in its
Judgment of June 26, 1987, when it stated:
The rule of prior exhaustion of domestic remedies under the international law of
human rights has certain implications that are present in the Convention. Under
the Convention, States Parties have an obligation to provide effective judicial
remedies to victims of human rights violations (Art. 25), remedies that must be
substantiated in accordance with the rules of due process of law (Art. 8 (1)), all in
keeping with the general obligation of such States to guarantee the free and full
exercise of the rights recognized by the Convention to all persons subject to their
jurisdiction (Art. 1). (Godínez Cruz Case, Preliminary Objections, supra 25,
para. 93).
66.
Article 46 (1) (a) of the Convention speaks of "generally recognized principles of
international law." Those principles refer not only to the formal existence of such remedies, but
also to their adequacy and effectiveness, as shown by the exceptions set out in Article 46 (2).
67.
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
based 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.
68.
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.