11
50.
The Government raised several preliminary objections that the Court ruled upon in its
Judgment of June 26, 1987 (supra 16-23). There the Court ordered the joining of the merits and
the preliminary objection regarding the failure to exhaust domestic remedies, and gave the
Government and the Commission another opportunity to "substantiate their contentions" on the
matter (Velásquez Rodríguez Case, Preliminary Objections, supra 23, para. 90).
51.
The Court will first rule upon this preliminary objection. In so doing, it will make use of all
the evidence before it, including that presented during the proceedings on the merits.
52.
The Commission presented witnesses and documentary evidence on this point. The
Government, in turn, submitted some documentary evidence, including examples of writs of
habeas corpus successfully brought on behalf of some individuals (infra 120 (c)).
The
Government also stated that this remedy requires identification of the place of detention and of
the authority under which the person is detained.
53.
In addition to the writ of habeas corpus, the Government mentioned various remedies that
might possibly be invoked, such as appeal, cassation, extraordinary writ of amparo, ad effectum
videndi, criminal complaints against those ultimately responsible and a presumptive finding of
death.
54.
The Honduran Bar Association in its brief (supra 35) expressly mentioned the writ of
habeas corpus, set out in the Law of Amparo, and the suit before a competent court "for it to
investigate the whereabouts of the person allegedly disappeared."
55.
The Commission argued that the remedies mentioned by the Government were ineffective
because of the internal conditions in the country during that period. It presented documentation
of three writs of habeas corpus brought on behalf of Manfredo Velásquez that did not produce
results. It also cited two criminal complaints that failed to lead to the identification and
punishment of those responsible. In the Commission's opinion, those legal proceedings exhausted
domestic remedies as required by Article 46 (1) (a) of the Convention.
56.
The Court will first consider the legal arguments relevant to the question of exhaustion of
domestic remedies and then apply them to the case.
57.
Article 46 (1) (a) of the Convention provides that, in order for a petition or communication
lodged with the Commission in accordance with Articles 44 or 45 to be admissible, it is necessary
that the remedies under domestic law have been pursued and exhausted in
accordance with generally recognized principles of international law.
58.
The same article, in the second paragraph, provides that this requirement shall not be
applicable when
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.
59.
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