7
33.
For its part, the State points out that there are new jurisdictional guarantees to which
individuals may have recourse when they believe that their rights have been violated, namely the
action for protection (Article 88 of the Constitution of 2008), the action for failure to act (Article 93 of
the Constitution of 2008), and the extraordinary action for protection (Article 94 of the Constitution
of 2008). In this regard, the Commission notes that these actions were established in the
Constitution enacted in 2008, i.e., 12 years after the decision of April 24, 1996, so they would not
have been suitable for resolving the complaint submitted by the petitioners.
34.
In the instant case, it is not evident and the State has not substantiated why it would
be reasonable to require the petitioners to file independent and additional remedies in order to
achieve enforcement of what was ordered in the decision.
35.
Therefore, given the characteristics of the complaint that is the subject of the instant
case and the alleged failure to enforce the decision of April 24, 1996 and the order of June 19, 1997
in favor of Juan José Meza, as well as the fact that the enforcement process lasted from July 1996
until the archiving of the case on May 28, 2007, the Commission believes that the domestic remedies
were exhausted with the decision to archive the case issued on March 28, 2007, so that the
petitioners’ complaint meets the requirement of prior exhaustion of domestic remedies provided in
Article 46(1)(a) of the American Convention.
36.
Article 46(1)(a), due to its nature and purpose, is a provision with autonomous
content vis à vis the substantive provisions of the Convention. Therefore, the determination
regarding the exhaustion of domestic remedies that are applicable to the case in question must be
made prior to and separate from the analysis of the merits of the matter, in that it depends on a
standard of assessment different from that used to determine the possible violation of Articles 8 and
25 of the American Convention. It should be made clear that the causes and effects of the exhaustion
of judicial remedies to which reference has been made shall be analyzed in the report the
Commission adopts on the merits of the dispute, in order to determine whether they constitute
violations of the American Convention.
2.
Deadline for submitting the petition
37.
The American Convention establishes that in order for a petition to be admitted by
the Commission it must be submitted within a period of six months of the date when the alleged
injured party was notified of the final decision. Article 32 of the Rules of Procedure of the
Commission establishes that in cases where exceptions to the prior exhaustion of domestic
remedies are applicable, the petition must be submitted within a reasonable period of time in the
judgment of the Commission. To this end, the Commission must consider the date when the alleged
violation of rights occurred and the circumstances of each case.
38.
The Commission notes that the petition was received on February 15, 2001; that the
events covered by the complaint occurred starting on November 19, 1991, the date on which the
alleged victim filed a labor complaint for unjustified dismissal against the Club Sport Emelec; that
on April 24, 1996 the second instance decision was issued by the First Chamber of the Superior Court
of Justice of Guayaquil; and that the enforcement process lasted from July 1996 to the archiving of
the case on May 28, 2007. Therefore, in view of the context and the characteristics of the instant case
as well as the measures taken by the petitioners since the decision in order to achieve its
enforcement, the Commission believes that the petition was submitted on a timely basis and that
the admissibility requirement regarding the deadline for submission should be considered satisfied.
3.
Duplication of proceedings and international res judicata