33. Finally, the Commission has subject matter jurisdiction to examine this case, because the
petition refers to possible violations of human rights protected by the American Convention.
B.
Other requirements for admissibility of the petition
1.
Exhaustion of domestic remedies
34. Article 46.1 of the American Convention states that, in order for a petition lodged with the
Inter-American Commission pursuant to Article 44 of the Convention to be admissible,
remedies under domestic law must have been pursued and exhausted in accordance with
generally recognized principles of international law. The purpose of this requirement is to allow
the national authorities to look into an alleged violation of a protected right and, if appropriate,
to settle the case before it is brought before an international body.
35. The State alleges that the present case involves a criminal offense that is provided for and
punished under Dominican legislation. Thus, since the Joint Armed Forces and National Police
Court Martial of First Instance had jurisdiction over the case for the purposes of the
corresponding law, the National Armed Forces complied with the duty to clarify this highly
regrettable incident which resulted in the death of six Haitian nationals and one Dominican.
Moreover, it points out that the petition does not meet the requirement on prior exhaustion of
remedies under domestic law stipulated in Article 46.1.a of the American Convention, in view
of the fact that all of the remedies provided under Dominican law and available to the injured
parties to resolve the case were not exhausted. Articles 8, 70, and 92 of the 1953 Code of
Military Justice establish the procedure for compensation or review of a case heard and judged
in military courts, in a judgment that has acquired the authority of res judicata, yet the parties
have not availed themselves of this remedy to date.
36. The petitioners, on the other hand, allege that the military courts opened an official
investigation and prevented the alleged victims and their next of kin from participating in it.
Moreover, they point out that even when the family members of the victims brought a legal
action in the regular courts, the proceedings were suspended because of the existence of a
proceeding in a military court. Furthermore, they point out that the family members of the
victims requested the Supreme Court of Justice to establish the jurisdiction of the regular
courts, a petition that was denied on January 3, 2005. In this regard, they explain that they
learned of this decision by the highest court on their petition regarding jurisdiction in a
communication submitted by the State to the IACHR on July 13, 2007, which, in their view, is
a clear instance of irregularity and inefficiency in the judicial proceeding. As a result, the
petitioners argue that the exception to prior exhaustion of domestic remedies stipulated in
Article 46.2 of the American Convention applies.
37. In the case in point, it is important to clarify the domestic remedies that must be
exhausted in accordance with the letter and the spirit of Article 46.1.a of the American
Convention. In order for a petition to be found admissible, this provision requires that ... the
remedies under domestic law have been pursued and exhausted in accordance with the
generally recognized principles of international law. The Inter-American Court has interpreted
this provision to mean that only adequate remedies to resolve the violations allegedly
committed must be exhausted. The term adequate remedies means that:
the function of these remedies within the domestic legal system must be appropriate to protect
the infringed legal situation. In all domestic legal systems, there are multiple remedies, but not
all are applicable in all circumstances. If, in a specific case, the remedy is not adequate, it is
obvious that it is not required to be exhausted. This is consistent with the principle that the rule
must lead to an effect and cannot be interpreted in the sense that it should not produce any
effect or that its effect is clearly absurd or unreasonable.5
The case law of the Commission recognizes that whenever an indictable crime is committed, the
State has the obligation to promote and advance the criminal proceedings up to the final
5
I/A Court H.R., Velquez Rodruez Case. Judgment of July 29, 1988. Series C No. 4, para. 63.
6