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domestic remedies, without specifying what remedies were available under its domestic law to
deal with complaints of the type under consideration. There is also considerable evidence that the
Government replied to the Commission's requests for information, including that concerning
domestic remedies, only after lengthy delays, and that the information was not always
responsive.
90.
Under normal circumstances, the conduct of the Government would justify the conclusion
that the time had long passed for it to seek the dismissal of this case on the grounds of nonexhaustion of domestic remedies. The Court, however, must not rule without taking into account
certain procedural actions by both parties. For example, the Government did not object to the
admissibility of the petition on the grounds of non-exhaustion of domestic remedies when it was
formally notified of the petition, nor did it respond to the Commission's request for information.
On the other hand, when the Commission first became aware of the objection (subsequent to its
adoption of Resolution 30/83), not only did it fail to inform the Government that such an objection
was untimely but, by note of May 30, 1984, it asked the Government whether "the domestic legal
remedies have been exhausted . . . ." Under those circumstances and with no more evidence
than that contained in the record, the Court deems that it would be improper to reject the
Government's objection in limine without giving both parties the opportunity to substantiate their
contentions.
91.
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). Thus, when certain exceptions to the rule of non-exhaustion of domestic
remedies are invoked, such as the ineffectiveness of such remedies or the lack of due process of
law, not only is it contended that the victim is under no obligation to pursue such remedies, but,
indirectly, the State in question is also charged with a new violation of the obligations assumed
under the Convention. Thus, the question of domestic remedies is closely tied to the merits of the
case.
92.
At the hearing, the Government stressed that the requirement of the prior exhaustion of
domestic remedies is justified because the international system for the protection of human rights
guaranteed in the Convention is ancillary to its domestic law.
93.
The observation of the Government is correct. However, it must also be borne in mind
that the international protection of human rights is founded on the need to protect the victim from
the arbitrary exercise of governmental authority. The lack of effective domestic remedies renders
the victim defenseless and explains the need for international protection. Thus, whenever a
petitioner alleges that such remedies do not exist or are illusory, the granting of such protection
may be not only justified, but urgent. In those cases, not only is Article 37 (3) of the Regulations
of the Commission on the burden of proof applicable, but the timing of the decision on domestic
remedies must also fit the purposes of the international protection system. The rule of prior
exhaustion must never lead to a halt or delay that would render international action in support of
the defenseless victim ineffective. This is why Article 46 (2) of the Convention sets out
exceptions to the requirement of recourse to domestic remedies prior to seeking international
protection, precisely in situations in which such remedies are, for a variety of reasons, ineffective.
Of course, when the State interposes this objection in timely fashion it should be heard and
resolved; however, the relationship between the decision regarding applicability of the rule and
the need for timely international action in the absence of effective domestic remedies may
frequently recommend the hearing of questions relating to that rule together with the merits, in
order to prevent unnecessary delays due to preliminary objections.