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San Jose, Costa Rica – During the first day of the Brewer-Carías v. Venezuela hearing before the Inter-American Court on Human Rights (IACtHR, Court), the petitioner Allan R. Brewer-Carías, a Venezuelan political dissident and constitutional law professor, recounted his story before a full courtroom. Following Brewer-Carías’s captivating testimony, León Henrique Cottin Núñez, Brewer-Carías’s legal counsel in the Venezuelan case, and a leading defense attorney in the country, was called as an expert witness for the petitioner. Venezuela’s representatives proceeded to question Cottin, specifically focusing on whether Brewer-Carías exhausted domestic remedies, a prerequisite to obtaining a ruling on the merits from the Court. In response, Cottin detailed the numerous procedural and legal hurdles the defense team confronted throughout the proceedings, including transcribing the several thousand page record by hand, coping with irregular judicial removals following any favorable decision in Brewer-Carías’s case, starting the process anew on numerous occasions as a result of these removals, and submitting appeals that the Venezuela judicial system ultimately ignored. Moreover, until the Court’s recent intervention last week, Cottin did not have access to Brewer-Carías’s case file. Cottin underscored that these issues reflect a larger pattern in the Venezuelan judicial system, a lack of independence of judges and prosecutors, also noted in Freedom House’s 2013 Freedom in the World Report.

 Under Article 46 of the American Convention on Human Rights (Convention), a petitioner must pursue and exhaust all domestic remedies before the Inter-American Commission on Human Rights (IACHR, Commission) may consider the merits of a case and advance the case to the IACtHR. Three exceptions, however, apply to the exhaustion of remedies requirement: (1) the domestic legislation does not afford due process for the protection of the right, (2) the petitioner has been denied access to the remedies provided under domestic law or prevented from exhausting them, or (3) there has been unwarranted delay in rendering a final judgment under the aforementioned remedies.

The Commission, however, did not agree with Brewer-Carías’s argument that the lack of independence of the judiciary left him unable to exhaust domestic remedies, although it reiterated its long-standing concern of the problem of judicial independence in Venezuela. In its decision on grounds for admissibility, the Commission cited the second and third exceptions as applicable, and therefore admitted the case on those grounds, noting that more than three years passed without a decision on his various appeals. In its final decision on the merits, the Commission found that the State had not complied with its obligations to guarantee the independence and impartiality of the judiciary.

It remains to be seen whether the Court will accept Brewer-Carías’s argument that the lack of an independent and impartial judiciary prevented him from exhausting domestic remedies. For Brewer-Carías, failing to prove exhaustion of remedies could be fatal to his case before the Inter-American Court on Human Rights. Jurisprudence from the European Court of Human Rights (ECtHR) and the Inter-American Commission on Human Rights provides persuasive guidance for the IACtHR. In similar cases, the ECtHR has waived the requirement to exhaust domestic remedies when the impartiality and independence of the judiciary is questionable. The testimony of expert witness León Henrique Cottin strongly demonstrated that the defense made every attempt to comply with the Venezuelan legal system, but was prevented from doing so as a result of the partial and temporary nature of the prosecutors and judges. On the second day of the trial, the representatives for Brewer-Carías and those of the Venezuelan State will each question additional witnesses and present their closing arguments.

* The writers are members of the UNROW Human Rights Impact Litigation Clinic observing the upcoming hearing of Allan R. Brewer-Carías v. The Bolivarian Republic of Venezuela in the Inter-American Court of Human Rights. The staffs of the UNROW Human Rights Impact Litigation Clinic and the Human Rights Brief contributed additional research and editing in Washington, D.C.