The principle of subsidiarity and violation of human rights

non-exhaustion of special and extraordinary appeals according to the inter-american system

Abstract

Due to the principles of subsidiarity and complementarity, the Inter-American System of Human Rights establishes in the article of the Statute of the Inter-American Commission on Human Rights ("IACHR") and in Article 46 of the American Convention on Human Rights ("CADH"), that the exhaustion of domestic remedies is a requirement for the admissibility of complaints submitted to the IACHR. However, the Inter-American System has consolidated hypotheses in which it is not necessary to exhaust domestic remedies, as in the case of "extraordinary" remedies. In those cases, said remedies would not be able to guarantee the examination of human rights violations in domestic law. Therefore, the objective of this work is to evaluate whether specifically the “Special Appel” and “Extraordinary Appel”, provided in the Brazilian law, should be exhausted for the submission of a case before the inter-American System. This research, of a qualitative and quantitative nature, applies the deductive method, and uses the hypothesis that that such appeals present an "extraordinary" character in the terms of Inter-American jurisprudence, so it is determined that although they may be considered adequate in some cases of human rights violations, only those remedies whose functions are adequate to protect and repair the violation of a right should be exhausted. Thus, this work evaluates the jurisprudence, based on admissibility reports against Brazil in the IACHR in the last ten years, and the conclusions on the adequacy of “RESP” and the “REXT” to the terms of Article 46 of the ACHR. The impossibility of reexamination of evidence before the Superior Court of Justice and the Supreme Federal Court, according to binding jurisprudential guidelines No. 7 (STJ) and No. 279 (STF), would indicate that it is not be necessary to exhaust a RESP or REXT in order to submit a complaint to the IACHR. Moreover, unjustified delay in the processing of appeals would be another exception to non-exhaustion, also indicating a double violation of human rights.