B.
Other requirements for admissibility of the petition
a.
Exhaustion of domestic remedies
14. Article 46(1)(a) of the American Convention provides that the admissibility of a petition
presented to the Commission shall be subject to the requirement "that the remedies under
domestic law have been pursued and exhausted in accordance with generally recognized
principles of international law;”.Article 46(2) of the Convention establishes three potential
situations in which the rule on exhaustion of domestic remedies does not apply: a) the
domestic legislation of the state concerned does not afford due process of law for the
protection of the right or rights that have allegedly been violated; b) the party alleging
violation of his rights has been denied access to the remedies under domestic law or has been
prevented from exhausting them; or c) there has been unwarranted delay in rendering a final
judgment under the aforementioned remedies.
15. In respect of the criminal proceedings against Mr. García Cruz and Mr. Sánchez Silvestre,
the petitioners allege that the domestic remedies in Mexico have been ineffective; regarding
investigation into the allegations of torture, they maintain that there has been an unwarranted
delay. For its part, the State did not initially argue noncompliance with the exhaustion
requirement, but it later referred to a second judicial proceeding started in 1997 against Mr.
García Cruz and Mr. Sánchez Silvestre. The State explains that the latter proceeding was based
on the fact that “in the same statements made when they surrendered under questioning,
which gave rise to the suit in question, Mr. Juan García Cruz and Mr. Santiago Sánchez
Silvestre spoke about their participation in a shoot out in December 1996, which resulted in
the death of a police officer of the State of Mexico”. 9 Consequently, the State requests that the
Inter-American Commission declare the case inadmissible for failure to exhaust domestic
remedies in the part of the petition that refers to the second trial for homicide, which was
pending at the time of the second communication to the IACHR.
16. When a State alleges that there has been no exhaustion of domestic remedies, it bears the
burden of proof to show which ones must be exhausted and to demonstrate their
effectiveness. 10 In that case, the petitioners then bear the burden of proving that the remedies
were exhausted or that one of the exceptions in Article 46(2) of the American Convention
applies.
17. In this case, the IACHR considers that it is not possible to separate the arguments in fact
and in law referring to the case on bearing firearms from the second proceeding referring to
the homicide of which Mr. García Cruz and Mr. Sánchez Silvestre were accused. The legal
position of both persons in the two proceedings is based on the statement that was madeaccording to the petitioners, which was not contested by the State-while they were held
incommunicado at the PGJDF facilities without access to an attorney. Therefore, the
determination of the Inter-American Commission with respect to the first of the
aforementioned proceedings will necessarily affect the second one.
18. Without entering into an analysis of the arguments put forward by the parties on the
alleged violation of judicial guarantees and judicial protection, the Inter-American Commission
observes, in a preliminary manner, that at the time this report was approved, six years had
gone by since June 1997 when Mr. García Cruz and Mr. Sanchez’s injuries were detected and
this was reported to the judicial authorities. The investigation of the allegations of torture,
according to the findings in the case, did not begin until March 2002 and there is no indication
that it would have been completed by the time this report was adopted.
9Communication from the State dated July 3, 2001, pg. 2.
10Inter-American Court of Human Rights, Velásquez Rodríguez Case, judgment on preliminary exceptions cited, para.
88.See also, Fairén Garbi and Solís Corrales Case, Preliminary Exceptions, Judgment of June 26, 1987, Series C No. 2,
para. 8; Godínez Cruz Case, Preliminary Exceptions, Judgment of June 26, 1987, Series C No. 3, para.90; Gangaram
Panday Case, Preliminary Exceptions, Judgment of December 4, 1991, Series C No.12, para. 38; Neira Alegría et. al
Case, Preliminary Exceptions, Judgment of December 11, 1991, Series C No.13, para. 30; Castillo Páez Case,
Preliminary Exceptions, Judgment of January 30, 1996, Series C No. 24, para.40; Loayza Tamayo Case, Preliminary
Exceptions, Judgment of January 31, 1996, Series C No. 25, para. 40; Exceptions to Exhaustion of Domestic Remedies
(Art. 46.1, 46.2.a and 46.2.b American Convention on Human Rights), Advisory Opinion OC-11/90 of August 10, 1990,
Series A No.11, para. 41.
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