15
the requirement to exhaust domestic remedies in light of the situation at the time the
admissibility report was issued, has to do with the fact that in a significant number of cases there
are modifications and/or updates on the situation of compliance with the admissibility
requirements. It noted that according to the Convention and the applicable rules, the
admissibility stage is precisely for the purpose of allowing States to submit additional information
on the adequacy and effectiveness of the domestic remedies, when petitions are based on
arguments regarding the applicability of exceptions to the rule of prior exhaustion of domestic
remedies. The assessment of all this information culminates at the moment of deciding on the
admissibility of the petition. It emphasized that all the information received after the initial
petition is strictly submitted to adversarial proceedings. It also argued that the State’s position
is at odds with the text of Article 46(2) (c) of the Convention, which necessarily presupposes the
existence of parallel proceedings at the domestic and inter-American levels. Based on the
foregoing, and taking into account that at the time of analyzing the requirement to exhaust
domestic remedies in the instant case, 20 years had already elapsed since the facts without any
judicial ruling having been issued, the Commission considered that the objection of unwarranted
delay established in Article 46(2)(c) of the American Convention was applicable.
39.
In addition, in a subsidiary manner, the Commission referred at the public hearing “to
the situation in Peru at the time [the] petition was lodged [...] and recalled that in cases of
forced disappearance, the appropriate remedy that States must offer is the immediate and
diligent search for the person with the dual objective of clarifying the facts [and...] protecting
and preventing a violation of the personal integrity and life of a person. When the petition was
submitted to the Commission, at least five complaints had already been filed by individuals and
community members who had reported the facts to the domestic authorities; however, none of
these complaints merited either the immediate opening of an investigation, or the carrying out
of immediate searches […]. A writ of habeas corpus had also been filed and this remedy was also
unsuccessful and did not elicit an immediate and effective response. This lack of effectiveness of
the remedies pursued, even at the time the petition was filed, [was] a true reflection of the
generalized climate of ineffectiveness of the Public Prosecutor’s Office and the Judiciary, which
the Commission itself was able to verify during an on-site visit made to the State of Peru, […]
three months after the events were perpetrated […] and which is clearly reflected in the 1993
Country Report […].” In view of the foregoing, the Commission requested that the preliminary
objection filed be declared inadmissible.
40.
The representatives stated that the Court should dismiss this preliminary objection for
the following five reasons. First, they argued that the preliminary objection should not be heard
because the State did not allege, nor was there a serious error in the proceedings before the
Commission, that would have violated its right of defense. Secondly, they indicated that the
objection filed by the State did not meet the formal and material requirements to be considered,
since at the time of filing that objection before the Commission and the Court, it did not mention
which remedies should have been exhausted or the reasons why they were adequate and
effective. Third, the representatives pointed out that it has been the constant practice of the
Commission to analyze the requirements set forth in Articles 46 and 47 of the Convention in light
of the situation in force at the time when it rules on admissibility or inadmissibility.
41.
Fourth, the representatives argued that the exception contained in Article 46(2)(b) of the
Convention had been met, given that in the instant case Peru did not take adequate steps to
remedy the violations denounced at the time of the initial complaint, nor subsequently, and that
to date the victims' right to truth, justice and reparation has not been satisfied. Furthermore,
they affirmed that the relatives of the alleged victims were already certain that the remedies
filed would be ineffective before the Commission decided on admissibility.
42.
Fifth, the representatives argued that the exception to the requirement of prior
exhaustion of domestic remedies contained in Article 46(2) (c) of the Convention was met. They