For its part, on May 11, 1992, the Government of Peru replied to the Commission's request, stating that Dr. Alan García was, of his own volition, in hiding and that his purpose was to create some scandal with national and international organizations in the hope of obtaining "some political-partisan advantage from the situation."

       Via note of June 2, 1992, the petitioners reported to the Commission that the Government of Colombia had granted Dr. Alan García political asylum and that he had thus managed to leave the country and to escape the political persecution of which he was allegedly the victim.

       On June 3, 1992, the Commission forwarded to the parties a summary of the facts as alleged and of the situation of Dr. Alan García Pérez, asking that they submit their observations concerning the information reported.

       The Government of Peru presented its observations on June 29, 1992.  It stated that the information described by the petitioners was a misrepresentation of the facts since the objective of the Army soldiers had been to protect the home of former President García.

       In two successive presentations, in August and September 1992, the petitioners denounced to the Commission that, through two ministerial decisions, the President of the Republic had authorized the public prosecutor to seek nullification of the Supreme Court decision in the case of unlawful enrichment brought against former President García Pérez and to institute another criminal action based on the facts that had been dismissed previously because there did not exist a legal typification of the crime.  They also asked the Commission to adopt, pursuant to its Regulations, precautionary measures to protect the human rights of Dr. Alan García Pérez.

       On October 2, 1992, concerned over the difficult situation that Dr. García Pérez was experiencing, the Commission requested precautionary measures wherein it asked the Government of Peru to guarantee respect for the rights of due process in the proceedings conducted against the former president.

       On October 19 and 27, 1992, the Government of Peru presented its observations concerning the precautionary measures that the Commission had requested.

       In a number of presentations in the period between December 1992 and October 1993, the petitioners supplied the Commission with additional information to substantiate their claims that the Government of Peru had committed human rights violations against former President Alan García and his family.

       For its part, in notes dated January 26, February 2, and March 17, 1993, the Government sent additional information to the Commission, refuting the petitioners' arguments and requesting that the case be declared inadmissible.

       III.    FACTS DENOUNCED

       Based on the information the petitioners supplied to the Inter-American Commission on Human Rights, the facts denounced as violations of rights protected by the Inter-American Convention would be as follows:

       A.    Actions taken by Army soldiers for the purpose of arresting Dr. Alan García

       On the night of April 5, 1992, Army soldiers, under the command of General Nicolás de Bari Hermoza Ríos, who was himself acting on orders from the President of the Republic and the Commander-in-Chief of the Armed Forces, surrounded the house of Dr. Alan García Pérez with war tanks outfitted with cannons, small tanks and armored troop-carriers.  Some one hundred heavily-armed soldiers surrounded the house and then demanded the "surrender of Dr. Alan García Pérez who was under arrest on orders from the Joint Command."

       They then attacked the house of Dr. García Pérez with gunfire and finally broke into the residence.  Inside were the former president, Deputy Jorge del Castillo Gálvez and six members of the National Police who had been detailed to guard the former president and his home.  The latter were beaten, disarmed and arrested.

       Although Dr. García Pérez managed to escape, Deputy del Castillo Gálvez was severely beaten by the soldiers.  They put a hood over his head and took him away under arrest.

       Also in the house at the time the soldiers burst in were the former president's four children, all of whom are minors, and the household staff.  They were told to remain in their rooms and were not allowed to leave.

       At the time of these events, the wife of Dr. Alan Pérez was abroad.  When she returned to Lima the military who had remained at her house tried to prevent her from entering.   However, with help of the Ambassador of Venezuela, she was finally able to get into her house.  Once there, she found that it was occupied by soldiers and that her children were confined to their rooms and denied their freedom.

       For the next four days, Mrs. García and her children remained under house arrest.  Once the soldiers had left, she was not given back the police protection to which all former presidents are entitled and was thus left utterly unprotected.

       In the search they conducted, Army soldiers had unlawfully seized private documents belonging to the García family, such as identification papers, passports, property deeds, tax declarations, correspondence and all of the original documents from Dr. Alan García's legal defense in his trial on charges of unlawful enrichment.

       Moreover, although it did not have the proper legal warrant, the Army also searched the offices of the Institute of the External Debt, which was headed by Alan García, and did material damage and removed working papers from it.  Dr. García's private secretary was arrested and held incommunicado for five days in a facility of the Army Intelligence Service.

       Finally, the car belonging to Deputy Jorge del Castillo was severely damaged; the soldiers took from it important documents pertaining to Dr. García's legal defense.

       B.    The status of the Judiciary subsequent to the events of April 5, 1992

       After April 5, 1992, the Government of Peru declared that the Judiciary was being reorganized.  As part of that process, a decree was issued removing the justices of the Supreme Court, the judges of the Tribunal of Constitutional Guarantees and the members of the National and District Judicial Benches.  Under the same decree, the Attorney General of the Nation, the Comptroller General of the Republic and 134 people serving as superior court judges, superior court prosecutors, district court judges, provincial prosecutors and juvenile court judges were removed from their positions.

       Another measure adopted by the Government was to close judges' chambers and the Office of the Government Attorney for a period of 10 working days, leaving only the examining judges and assigned prosecutors functioning.  Thus, because of the total paralysis of judicial activities, citizens were unable to file petitions of amparo and habeas corpus.

       This situation affected, in particular, the wife of Dr. Alan García Pérez, who on several occasions attempted to file a petition of habeas corpus on behalf of the former president.  Specifically on April 12, she went to the Palace of Justice, in the company of her children, but her entry was blocked by the Army soldiers surrounding the building.  The judge of the assigned examining court, with whom Mrs. García had spoken by phone, offered to come out to receive the petition, but did not follow through with her offer.  On April 13, Mrs. García went back to the Palace of Justice and was again stopped by Army soldiers.  On April 14, she was not only denied entrance but the police threw tear gas, forcing Mrs. García to retreat.

       C.    Criminal charges brought against former President Alan García for illegal possession of weapons

       On April 14, 1992, the Government of Peru passed Ministerial Resolution 385-92 IN/DM, published the following day in the El Peruano official gazette, authorizing the public prosecutor to file criminal charges against Alan García for the crime of illegal possession of firearms.  The charge was the result of a search conducted by Army soldiers at the offices of the Aprista Party, of which Dr. Alan García was Secretary General.  There they allegedly had discovered firearms, munitions and explosives.  The search was done in the presence of a military prosecutor who had no jurisdiction for raids of this kind.  There was no court order and no civil prosecutor present even though a civil prosecutor would later sign the search report, thereby sanctioning the operation conducted.

       On April 30 that year, a second Ministerial Resolution, No. 0435-92-IN/DM, was published in the El Peruano.  Dated April 29, that resolution ordered that the Public Prosecutor institute a second criminal case against Dr. Alan García for illegal possession of weapons.  This case was based on the alleged discovery of firearms at Alan García's home on the night his residence was assaulted by army soldiers.  As had happened in the previous case, the search was conducted without a court order and without the presence of a prosecutor, in violation of the provisions of the law in effect.

       Subsequently, the wife of former President García Pérez presented the licenses for the firearms seized by the Army.  She also clarified that one of the weapons seized was an old "Pukuna" rifle that had been a gift from the General Commander of the Army and another rifle that had been a gift from the Government of Nicaragua, both at the time when Dr. Alan García Pérez was President of the Republic.  They were in their cartridge holders at the time, unloaded and in plain view, in an area of the house. 

       D.    The case for unlawful enrichment

       Once the new constitutional president, Alberto Fujimori, was in office, a congressional inquiry was instituted against Alan García.  As a result of that inquiry, impeachment proceedings were conducted for the alleged crime of unlawful enrichment.  Those proceedings ended on October 19, 1991, with Senate Resolution No. 1189-91, which declared the case "admissible".  With that, the accused was suspended from his office as Senator for life, under the provisions of Article 184 of the Constitution, making him "subject to prosecution."

       The impeachment case was based on the following charges against the former president:

              a.    a lack of proportion in his assets during his time in public office, as there was an unjustified increase in his assets;

              b.    presumptions of an even greater gap between income and expenditures by reason of the possible existence of bank accounts abroad;

              c.    presumptions of his direct involvement in the decision to invest reserves of the Central Bank of Peru in the BCCI, transactions that would have involved bribes;

              d.    presumptions of his direct involvement in reducing the purchase of Mirage aircraft, under the Jupiter I, Jupiter II and Jupiter III contracts, which may have been coupled with a sale of aircraft manufactured for Peru but sold to third parties, which would have generated personal profits for Dr. García.

       When the impeachment file was sent to the Attorney General of the Nation, the latter instituted criminal proceedings before the Second Chamber of the Supreme Court, for the crime of unlawful enrichment, with the State as the aggrieved party.  The Attorney General based that decision on item a) of the articles of impeachment, in other words the undue increase in Dr. García Pérez' assets during his time in public office.  Items b), c) and d) of the articles of impeachment were dismissed since the pertinent criminal law had been changed under the new Code, where indications are defined as "signs, presumptions, circumstances revealing something that is hidden or instrumental in uncovering actual proof, but not inherent in the nature of the criminal offense of unlawful enrichment."  Hence, the Attorney General concluded that the facts contained in points b), c) and d) of the Impeachment were suspicions that were not part of what constitutes the crime and did not corroborate guilt.

       Once the Criminal Section of the Supreme Court had received the case, the Examining Justice (charged with investigating the allegations) was appointed.  After examining the terms of the case, he ruled under Article 77 of the Code of Criminal Procedure that no pre-trial hearing should be held, and ordered that the case be filed permanently.

       When the decision of the Examining Justice was appealed, the case was presented to the Special Correctional Tribunal of the Supreme Court, which upheld the denial of the request to open preliminary proceedings.

       Both the Public Prosecutor and the Supreme Prosecutor for Civil Matters filed petitions requesting that the decision be vacated based on procedural violations (recurso de nulidad), but their petitions were denied.  The Office of the Attorney General and the Office of the State's Attorney then filed an appeal (recurso de queja) with the First Criminal Chamber of the Supreme Court.  On January 29, 1992, the First Criminal Chamber of the Supreme Court declared both petitions unfounded.

       Thus, the original decision taken by the Examining Justice became res judicata once the petitions to vacate the original decision and the appeal were denied.

       However, since the measures adopted by President Fujimori starting on April 5, 1992, attempts had been made to reopen that case and another new criminal case has been instituted based on the articles of impeachment that were originally dismissed by the Attorney General on the grounds that they did not constitute crimes.

       In effect, on July 15, 1992, the Public Prosecutor designated by President Fujimori filed a petition with the Criminal Chamber of the Supreme Court to have the decision by the Examining Justice nullified, particularly that part of the decision that refused to allow preliminary proceedings to be instituted against former President Alan García.

       Through a Supreme Resolution dated September 11, 1992, the Government of Peru designated and authorized the Public Prosecutor to "institute, prosecute, and finalize ... the legal and judicial proceedings against the former president..." for the matters contained in the Senate resolution that authorized prosecution of Alan García and that were originally dismissed by the former Attorney General of the Nation.

       Once the complaint was formally entered, the provisional Attorney General of the Nation instituted the corresponding criminal proceeding.  Once the Supreme Court Examining Justice was designated, he submitted his decision on September 23, 1992, ordering that preliminary proceedings be instituted against Dr. Alan García for the crime of unlawful enrichment.

       On November 23, 1992, the Supreme Court' Special Correctional Tribunal voided any action taken on the basis of the decision -adopted by this Tribunal's previous members- denying the initiation of preliminary proceedings against Alan García. On March 17, 1993, the Supreme Court' Special Criminal Chamber voided the decision denying the institution of preliminary proceedings and ordered the opening of these proceedings.

       E.    Congressional immunity and the right to impeachment proceedings

       At the end of his term as President of the Nation, on July 28, 1990, Dr. Alan García Pérez became a Senator for life, under the terms of the 1979 Constitution.

       Under Resolution No. 1189-91 the Senate decided to adopt the articles of impeachment against the former president and, as a consequence, decided to lift his congressional immunity so that he might be prosecuted in accordance with the law.

       Once the judicial inquiry process ended with the Supreme Court's final ruling confirming the refusal of the order to institute a preliminary inquiry against former President Alan García Pérez, the Officers of the Senate officially restored his congressional privileges on March 20, 1992.  Thus, the former president once again enjoyed Congressional immunity and, with it, all the rights that the Constitution and laws of Peru accord to Senators for life. 

       However, his status as a Senator for life and the immunities that go with that were not acknowledged in the new proceedings instituted against him.

       In effect, even though Article 176 of the 1979 Peruvian Constitution, which was in force until December 31, 1993, provides that senators and deputies may neither be tried nor arrested without the prior authorization of the Chamber of which they are a member, since April 5, 1992 two criminal proceedings have been instituted against Dr. Alan García based on the alleged commission of the crime of illegal possession of weapons.  In neither case was proper Senate authorization sought.

       Moreover, in the new criminal case brought against the former president for the crime of unlawful enrichment, there was no constitutional impeachment proceeding beforehand, as required under articles 183 and 184 of the 1979 Constitution, in effect at the time. 

       IV.   OBSERVATIONS OF THE PARTIES

       A.    Position of the Government

       1.    Exhaustion of remedies under domestic law

       The Government of Peru alleged that in the instant case, the remedies under domestic law had not been exhausted and hence, in keeping with the provisions of Article 46.1.a of the Convention, the petition should be ruled inadmissible.   The Government also noted that the handling of the unlawful enrichment case had not been completed in the local court and thus, before proceeding to examining the conduct of the Peruvian state, the Commission should wait for the final outcome of the remedies under domestic law.

       As regards the other alleged violations, particularly violations of personal liberty, right to privacy, and violations relating to the alleged illegal handling of two counts of illegal possession of firearms, the Government furnished no observation whatsoever.

       2.    Merits of the case

       The Government of Peru refuted the facts denounced by the petitioners, that there was no order to forcibly arrest Dr. García Pérez on the night of April 5, 1992.  Quite the contrary, the order that the Army soldiers received was to stand guard over the residence of the former president to prevent any possible disturbance of law and order.  However, because of the evidence that there were arms and men bearing arms within the residence of Dr. García Pérez, "in order to prevent any criminal attempts, elements of the forces of law and order seized the weapons and explosives inside that residence and took the necessary precautions to protect the individuals from any danger."

       Moreover, the Government of Peru denied that there had been any violation of the residence of the former president or that the children and wife of Dr. Alan García had been held incommunicado for four days.  It stated that "the forces of law and order remained in the immediate vicinity in order to provide the residence with the necessary security and to prevent any attempt capable of being used or magnified to the detriment of the forces of law and order or the established order."

       The Government of Peru argued that the impeachment proceedings that resulted in Senate Resolution No. 1189-91 declaring that there were grounds to prosecute former president Alan García Pérez for the commission of unlawful enrichment, with the state as the aggrieved party, had properly substantiated that the former president did indeed have undeclared foreign bank accounts; that he had been instrumental in the decisions to invest the reserves of the Central Bank of Peru in the BCCI, transactions that would have involved bribes; and that he had participated in the decision to reduce the number of Mirage aircraft that Peru purchased from the Government of France under the Jupiter I, II and III contracts, transactions from which the former president would have profited financially.  However, the Government alleged, when the articles of impeachment were sent to the Office of the Public Prosecutor, the former Attorney General of the Nation, Dr. Pedro Méndez Jurado, did not include any of the alleged facts in the case against the former president before the Criminal Chamber of the Supreme Court.  Hence, the Government reasoned, the former Attorney General failed to comply, first of all, with the binding order to "prosecute" Alan García, once the Senate declared that there were grounds for prosecution (Article 184 of the 1979 Constitution) and, secondly, with his obligation to "bring all ...civil and criminal actions... against the President of the Republic, senators and deputies ... once the Senate has declared that there are grounds for prosecution" (Article 66, paragraph 2, of the Organic Law of the Attorney General's Office).

       And so, both the Public Prosecutor and the Attorney General of the Nation brought a new criminal case against former President Alan García on the grounds that Article 184 of the 1979 Constitution of Peru does not empower the judiciary to decide whether or not to institute a legal inquiry.  Quite the contrary, the constitutional mandate is imperative; in other words, once the Senate has declared that there are grounds for prosecution, the Judiciary must institute the inquiry.  Moreover, it argued, the function of the Attorney General under Article 66, paragraph 2 of the Organic Law of the Attorney General's Office, which is to prosecute high-ranking public officials, must be carried out.  Hence, because of the way the two laws function, inasmuch as the Senate authorized proceedings, the Attorney General of the Nation was obliged to institute the proper criminal prosecution and the Judiciary was obliged to institute the examining phase.  The purpose of the examining phase is to investigate the alleged crimes being charged and determine whether the accused is in any way implicated.  Hence, the inquiry into the case in no way signifies that the Judiciary is convicting the accused before any trial is even held.

       Using these arguments, the Government of Peru alleged that this criminal action brought by the Attorney General of the Nation against former President Alan García was based on articles of the Constitution and the provisions of the Statute of the Office of the Attorney General, which require that a criminal case be filed against the high-ranking official, in this case a Senator, and that the examining phase be instituted when the Senate, after hearing the articles of impeachment prepared by the Chamber of Deputies, declares that there are grounds for prosecution under the terms prescribed by law.

       As for the question of res judicata, the Government of Peru, in a writ from the Attorney General of the Nation, states that the principle of res judicata "is not applicable in the instant case, since res judicata exists when an adversarial proceeding before a judge or court has resulted in a ruling that is final and thus not subject to appeal except in the very exceptional cases where review is permissible."  Hence, the Government contends, there are two prerequisites for res judicata: the existence of an adversarial proceeding and the culmination of that proceeding in the form of a final sentence.

       As for the first point, the Government contends that the decision handed down by the former Supreme Court Examining Justice denying the request to institute proceedings against Dr. Alan García Pérez "does not constitute res judicata" inasmuch as it was not the result of a "court inquiry into the merits of the facts duly [alleged] by the National Congress in the preliminary hearing conducted in accordance with articles 183 and 184 of the National Constitution."

       The Government further asserts that criminal charges must be dismissed in the proceeding itself when, because it has become obvious that no crime has been committed or that the accused is not the guilty party, the proceeding is terminated with effects analogous to an acquittal.  Hence, the Government argues, a dismissal, whether without prejudice or permanent, must be the outcome of a legal proceeding; in other words, it must come once the examining phase has already started and never before it.  The Government argues that the principle of res judicata was not violated in the case of former President Alan García because the ruling that disallowed the institution of an inquiry was not a definitive stay of proceedings inasmuch as it was not the outcome of a proceeding ("court inquiry into the merits of the facts duly [alleged]").

       The Government of Peru also asserts that there is no "new trial" against Alan García but rather an "amplification" of the first trial, since the facts involved are the very ones that were the basis of the articles of impeachment and that the former Attorney General of the Nation subsequently failed to include in the indictment presented before the Criminal Chamber of the Supreme Court.

       B.    Position of the petitioners

       1.    Exhaustion of remedies under domestic law

       The petitioners alleged that they were really hindered in their efforts to seek remedy under the domestic law as there was absolutely no judicial activity on the days after April 5, 1992.   In their statements to the Commission, the petitioners in fact claimed that on several occasions Dr. Alan García Pérez's wife attempted to file a habeas corpus petition on behalf of the former President.  Those attempts were frustrated by Army soldiers stationed at the Palace of Justice who not only prevented her from entering, but also prevented her from making any contact with the judges on duty.

       They also stated that, as soon as judicial activity resumed, the appeals filed locally to protect the rights of Dr. Alan García proved to be totally ineffective insofar as they were repeatedly dismissed with insubstantial arguments or based on purely procedural considerations.

       Finally, the petitioners claimed in all of their statements that since April 5, 1992, decisions by the Executive Branch have continued to interfere with the Judiciary in Peru.  Apart from replacing judges by decree, the Executive Branch has also influenced decisions handed down by the courts.  The petitioners repeatedly stated that Peru has failed to guarantee its citizens the right to a hearing by an independent and impartial court.

       Using the aforementioned reasoning, they asked the Commission that, invoking the exemptions provided for in Article 46.2 in terms of exhausting local remedies, it should rule the case admissible and then consider its merits.

       2.    Merits of the case

       Firstly, the petitioners emphasized that nowhere in its various presentations does the Government deny the charges of human rights violations committed against former President Alan García, his wife and children.  Quite the contrary, it justifies the measures taken by the Army and then simply discusses the existence or nonexistence of res judicata and double jeopardy in the cases being prosecuted against former President Alan García Pérez for the crime of unlawful enrichment.

       The petitioners argue that under Peruvian law, res judicata does not come about solely by virtue of a court ruling.  Indeed, under Article 2, subparagraph 20 LL of the 1979 Peruvian Constitution, "amnesty, pardon, permanent dismissals and prescriptions are to have the effect of an adjudicated matter."  The petitioners further point out that under Article 233.2 of the Constitution, one of the guarantees of the administration of justice is that "decisions that have acquired the authority of res judicata must be enforced."

       The petitioners also assert that if the basis of a decision is the very basis that can be used to substantiate an acquittal and if that decision is reviewed by successive courts and ends up being adopted or confirmed by any one of them that has the jurisdiction and competence to order acquittal or to convict, then res judicata applies.  Thus, once a decision ordering that a criminal case be filed because the facts alleged are not codified as criminal offenses is upheld on appeal, it becomes final and has the authority of res judicata.

       The case prosecuted against Dr. Alan García for the crime of unlawful enrichment ended with a ruling or order from the Supreme Court Examining Justice to the effect that no inquiry was to be instituted because the facts alleged did not have sufficient merit and were not codified as offenses under criminal law.  That decision was confirmed by the Special Correctional Tribunal of the Supreme Court.  When an appeal was filed to have that decision vacated, the appeal was considered legally unfounded.  When an appeal was filed, it was declared unsubstantiated by the First Criminal Chamber of the Supreme Court.  Given those facts, the petitioners argue, the ruling ordering that an inquiry not be instituted became res judicata.

       The foregoing notwithstanding, the petitioners allege, on September 11, 1992, by decision of the Council of Ministers, the Public Prosecutor was authorized to request the Attorney General of the Nation to institute a new criminal action against former President Alan García for the crime of unlawful enrichment, thereby violating the principle of res judicata.

       The petitioners further contend that the principle of res judicata was violated by the Supreme Court decision to nullify the Supreme Court Examining Justice's decision against instituting an inquiry, a decision that was confirmed by the Supreme Court itself with its previous membership.

       The petitioners reason that once that case was reopened and since a new criminal action was instituted, there are in effect two cases in progress against Dr. Alan García, based on the same facts and accusing him of the same crime.

       Finally, the petitioners argue that instituting a new trial against the former president, without impeachment proceedings being conducted in accordance with the provisions of articles 183 and 184 of the 1979 Constitution, contravened the proper proceedings before the previously established competent court, that is to say the rule that prohibits removal of a case from its legally pre-established jurisdiction.

       VI.   GENERAL CONSIDERATIONS

       A.    The Competence of the Commission and the formal requirements of admissibility

       The Inter-American Commission on Human Rights is competent to take up the instant case as it concerns violations of human rights recognized in articles 7, 8, 11, 19 and 25 of the American Convention on Human Rights.

       The present petition satisfies the formal requirements of admissibility stipulated in Article 46 of the Convention and in Articles 32, 37, 38 and 39 of the Commission's Regulations.  In effect, the petition contains the data of the petitioner, a description of the facts alleged to be violations of human rights protected by the Convention, the identity of the government alleged to be responsible for the alleged violation, and exact information on the resources used in the domestic jurisdiction.  The complaint is not pending settlement in any other procedure under an international governmental organization and does not essentially duplicate a petition pending or already examined and settled by the Commission.

       As to the proceedings set forth in article 48 1.f of the Convention, neither the Government nor the petitioners expressed their willingness to reach a friendly solution in the present case.

       Article 46.1.a of the Convention states that for a petition or communication submitted to the Commission under Article 44 or 45 of the Convention to be admissible, the remedies under domestic law must have been pursued and exhausted in accordance with generally recognized principles of international law.

       The Inter-American Court of Human Rights has stated that "the rule of prior exhaustion of domestic remedies allows the State to resolve the problem under its internal law.  Before being confronted with an international proceeding...".[1]

       However, this right of the State to resolve an alleged human rights violations using its own remedies and within its own courts implies an obligation to provide those remedies in accordance with  generally recognized principles of international law.[2]

       Accordingly, the Inter-American Court has also stated that "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 (Article 25), remedies that must be substantiated in accordance with the rules of due process of law (Article 8.1), all in keeping with the general obligation ... to guarantee the free and full exercise of the rights recognized by the Convention to all persons subject to their jurisdiction (Art. 1)".[3]

       Thus, the rule requiring exhaustion of domestic remedies presupposes that a State is not only obliged to offer effective judicial remedies but also to guarantee that those remedies can be used in respect of the provisions of due process.  This is because the very effectiveness of the remedies largely depends on the fact that the proper guarantees will be observed when those remedies are processed.

       Article 46.2 of the Convention states that the requirement of exhaustion of the remedies under domestic law shall not apply when the following conditions obtain: