recognized the delay caused by Labor Tribunal #3 and, consequently, issued
a disciplinary sanction consisting of a rebuke of the secretariat of the labor
tribunal.
29.
The Commission observes that, according to the labor
legislation that governs the province of Buenos Aires, the special remedies
recurso de inaplicabilidad and recurso de nulidad, are the only ones that can
be filed against final judgments delivered by the labor tribunals. Considering
this, the Commission takes note that Mr. Spoltore tried in the procedural
avenues that were available to him to seek the appropriate resolution to his
labor proceedings. The petitioner waited nine years for a court of the first
instance to resolve his case, filing, within this proceeding, complaints
regarding the delay; subsequently, he waited three years for rulings to be
issued on the recurso de inaplicabilidad and recurso de nulidad and,
simultaneously, he filed a complaint with the Control Authority of the Supreme
Court Justice of Buenos Aires, which spent two years on its resolution. Faced
with these circumstances, it is not reasonable to ask, as a precondition for
admissibility, that he file a new remedy, with all of the instances, in order to
remedy the delay in the proceedings of his labor complaint.
30.
In virtue of the fact that the principle complaint filed focuses
on the delay caused by the State in the substantiation of the labor proceedings
initiated by a petition filed by the petitioner, and the alleged denial of justice
suffered by the petitioner, the recurso de inaplicabilidad and the recurso de
nulidad, as well as the administrative complaint, are prima facie the
appropriate remedies and they satisfy to the necessary extent the requirement
of exhaustion of domestic recourses stipulated in Article 46.1 of the American
Convention.
31.
It should be noted that the Inter-American Court has
repeatedly ruled that in the case that “a State alleging non-exhaustion has
the burden of indicating which domestic remedies should be exhausted as well
as their effectiveness.”3 In the present case the State argues that the remedy
that should be exhausted is an action for damages from the government of
3 I/A Court H.R., Velásquez Rodríguez Case. Preliminary Objections. Judgment of June 26,
1987. Series C No. 1, paragraph 88; Fairén Garbi and Solís Corrales Case, Preliminary
Objections. Judgment of June 26, 1987, Series C No. 2, para. 8; Godínez Cruz Case.
Preliminary Objections, Judgment of June 26, 1987, Series C No. 3, para. 90; Case of
Gangaram-Panday. Preliminary Objections. Judgment of December 4, 1991, Series C No.12,
para. 38; Neira Alegría et al. Case. Preliminary Objections, Judgment of December 11, 1991,
Series C No.13, para. 30; Case of Castillo-Páez. Preliminary Objections. Judgment of January
31, 1996, Serie C No. 24, para. 40; Loayza Tamayo Case. Preliminary Objections. Judgment
of January 31, 1996, Series C No. 25, para. 40; Exceptions to Exhaustion of Domestic
Remedies (Art. 46(1), 46(2)(a) and 46(2)(b). (American Convention on Human Rights).
Advisory Opinion OC-11/90 of August 10, 1990. Series A No. 11.