9
of January 17, 2001, and that the administrative act of discharge was merely a consequence
of that resolution, thus appealing it would not have been suitable for the alleged victim’s
claims.
37.
In summary, the Commission observes that the petitioners exhausted the
remedies available in the face of the ruling by the Court of Law of the Fourth Military Zone
and in addition they filed an amparo action that was denied on appeal by the Constitutional
Court of February 4, 2002. Therefore, given the characteristics of the claims submitted, which
are focused on the issues of due process and alleged discriminatory treatment, the
Commission considers that the petitioners met the requirement of prior exhaustion of
domestic remedies, established in Article 46(1)(a) of the American Convention.
2.
Deadline for filing the petition
38.
The American Convention establishes that in order for a petition to be
admissible by the Commission it must be submitted within six months of the date on which
the alleged victim has been notified of the final decision. In the instant case, the petition was
received on August 30, 2002, and the decision of the Constitutional Court by which domestic
remedies were exhausted was notified on March 4, 2002.22 Therefore, the Commission
considers that the petition was submitted within the six-month period and that the provisions
of Article 32 of the Commission’s Rules of Procedure should be considered satisfied as regards
the admissibility requirement on time for submission.
3.
Duplication of procedure and international res judicata
39.
It does not appear from the record that the subject matter of the petition is
pending any other procedure for international settlement, nor that it reproduces a petition
already examined by this or any other international organization. Therefore, the requirements
established in Articles 46(1)(c) and 47(d) of the Convention have been met.
4.
Characterization of the facts alleged
40.
In view of the elements of fact and law presented by the parties and the nature
of the matter put before it for its consideration, the IACHR considers that the petitioners
allegations that the administrative procedure of summary information in the case of Homero
Flor did not afford him an opportunity to hear the statements of the witnesses against him,
or to question them, could tend to establish possible violations of the rights to judicial
guarantees and judicial protection protected at Articles 8(1) and 25, in conjunction with Article
1(1) of the American Convention.
41.
The Commission observes that as regards the claim of the petitioners on
discriminatory treatment in relation to Article 24 of the American Convention on Human Rights
in conjunction with Articles 1(1) and 2 of the same treaty, the arguments put forth require an
analysis on the merits in light of the standards of the American Convention.
42.
In terms of the petitioners’ claim alleging violation of Articles 9 and 11 of the
American Convention on Human Rights and Article XIV of the American Declaration of the
Rights and Duties of Man, the Commission observes that the petitioners did not offer sufficient
elements for their alleged violation, thus those claims are not declared admissible.
22
Notice of the Ruling of the Constitutional Court of April 21, 2002, April 29, 2002, attached to the original petition received October
23, 2002.