instrument. Therefore, the determination as to whether the exceptions
to the prior exhaustion rule provided for in that article apply to the
instant case must be made prior to and separate from the analysis of
the merits, since it depends on a standard of appreciation different from
that used to determine the violation of Articles 8 and 25 of the American
Convention.10 [10] Therefore, the Inter-American Commission clarifies
that the causes and effects that have prevented the exhaustion of
domestic remedies in this case will be analyzed, as applicable, in the
IACHR’s report on the merits of the case, to determine whether they in
fact constitute violations of the American Convention.
2.
Deadline for presentation
37. Article 46.1.b of the American Convention requires that petitions
be submitted within six months of notification of the final judgment.
Article 32.2 of the IACHR’s Rules of Procedure stipulates that when the
exceptions to the requirement of prior exhaustion of domestic remedies
are applicable, the petition shall be presented within a reasonable period
of time, as determined by the Inter-American Commission, considering
the circumstances of each case.
38.
The IACHR said supra that an exception to the rule for prior
exhaustion of domestic remedies is applicable, so it must determine
whether the petition was submitted within a reasonable period of
time. In the circumstances of the instant case, the Inter-American
Commission notes that the petition was lodged on October 16, 2002,
several years after the start of the administrative process for
demarcation of the Xucuru indigenous land, but before it was completed,
since it has not been completed to this date. Based on the specific
circumstances of the matter, particularly the allegations of an allegedly
unwarranted delay in the administrative process of demarcation of the
indigenous territory, the IACHR considers that the petition was
submitted within a reasonable period of time, and therefore satisfies the
requirement of Article 32.2 of its Rules of Procedure.
3.
Duplication of proceedings and international res judicata
10 IACHR, Report Nº 19/07, Petition 170-02, Admissibility, Ariomar Oliveira Rocha,
Ademir Federicci and Natur de Assis Filho, Brazil, March 3, 2007, para. 27; Report Nº
23/07, Petition 435-2006, Admissibility, Eduardo José Landaeta Mejía et al.,
Venezuela, March 9, 2007, para. 47; Report Nº 40/07, Petition 665-05, Admissibility,
Alan Felipe da Silva, Leonardo Santos da Silva, Rodrigo da Guia Martins Figueiro
Tavares et al, Brazil, July 23, 2007, para. 55.
13
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