unreasonable duration7, this possibility is still only in the sphere of theoretical
discussion and has not materialized in practice.8
35.
In consideration of this analysis, the Commission finds that the
State did not successfully demonstrate that the action for damages was the
appropriate one to establish the alleged responsibility of the State for the
unreasonable duration of judicial proceedings. In its Advisory Opinion No.
9/87, the Inter-American Court indicated, referring to the requirement of
previous exhaustion of domestic remedies, that “it is not sufficient that [the
remedy] be provided for by the Constitution or the law or whatever may make
it formally admissible, but rather it is required to be appropriate to establish
whether a violation has been caused to human rights and to prove whatever
be necessary to resolve it.”9 As has been established, the action for damages
appears to be theoretically possible according to Argentinean doctrine, but not
feasible given jurisprudential practice.
36.
As follows from the analysis, the Commission concludes that
Mr. Spoltore pursued the appropriate procedural avenues for the case being
processed and, considering this, it should be noted that both the Commission
and the Court have expressed that “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.” 10 The IACHR observes that, following the
recorded delay in the labor proceeding, it would not be reasonable to demand
that the petitioner exhaust an additional series of remedies. This would
7 In various cases, and as raised by the State, attempts have been made to infer this
possibility from the general principle of responsibility of the State for the actions or omissions
committed by civil servants in the exercise of their functions established by Article 1112 of
the National Civil Code which indicates that “The actions and omissions of public servants in
the exercise of their functions, for not complying but in an unlawful way with the legal
obligations charged to them, are included in the regulations of this title.”
8 In various cases, and as raised by the State, attempts have been made to infer this
possibility from the general principle of responsibility of the State for the actions or omissions
committed by civil servants in the exercise of their functions established by Article 1112 of
the National Civil Code which indicates that “The actions and omissions of public servants in
the exercise of their functions, for not complying but in an unlawful way with the legal
obligations charged to them, are included in the regulations of this title.”
9 I/A Court H.R., Judicial Guarantees in States of Emergency (Arts. 27.2, 25 y 8 American
Convention on Human Rights). Advisory Opinion OC-9/87 of October 6,1987. Series A No. 9,
Para. 24.
10 I/A Court H.R, Velásquez Rodríguez Case. Preliminary Objections. Judgment of June 26,
1987. Series C, No. 1, paragraph 93; I/A Court H.R, Fairén Garbi and Solís Corrales Case.
Preliminary Objections. Judgment of June 26, 1987. Series C No. 2, paragraph 92; I/A Court
H.R, Godínez-Cruz Case. Preliminary Objections. Judgment of June 26, 1987. Series C., No.
3, paragraph 95.