6 party to file a complaint or a private action in order to intervene directly and take part in the criminal investigations and in the proceedings that could result from them” remained pending (supra para. 11). In Report on admissibility No. 72/02 of October 24, 2002, the Commission did not refer to this allegation by the State. Nevertheless, the Court considers that the next of kin do not have to file a complaint or a private action in the criminal proceeding in order to exhaust domestic remedies; especially when the criminal proceeding relates to an alleged forced disappearance, which the State must investigate ex officio (infra paras. 143 to 145). 17. Consequently, the Court rejects the preliminary objection concerning to the alleged failure to exhaust the remedy of the complaint or private action. b) The alleged unjustified delay in the criminal proceedings 18. The preliminary objection filed opportunely8 by the State before the Commission argued that the alleged victims’ petition should have been declared inadmissible because the respective judicial proceedings were still open. The Court observes that the Commission examined the State’s arguments in its Report on admissibility No. 72/02, and indicated that the fact that “Mr. Portugal disappeared 30 years ago and that there is a continuing situation that subsists today, without there being a final judicial decision on those responsible for these facts” was sufficient reason to consider that there had been “an unjustified delay in processing the criminal case investigating the facts and, consequently, the petitioners were exempt from the requirement to exhaust domestic remedies, as stipulated in Article 46(2)(c) of the Convention.” In its answer to the application, the State argued that there had not been an “unjustified delay” in the domestic competence and, therefore, the assumptions established in Article 46(2)(c) of the Convention did not apply (supra para. 11). 19. Based on the above, the arguments of the parties and the evidence provided in these proceedings, the Court observes that the State’s arguments on the alleged inexistence of an unjustified delay in the investigations and proceedings opened in the domestic competence relate to issues concerning the merits of the case, as they dispute the arguments regarding the alleged violation of Articles 8 and 25 of the American Convention. Moreover, the Court finds that it has no cause to re-examine the Inter-American Commission’s reasoning when it decided on the admissibility of this case.9 20. Consequently, the Court rejects the preliminary objection in this regard and will address the arguments adduced by the State when considering the merits of this case. B) Lack of Competence of the Court Ratione Temporis 21. The State also filed as a preliminary objection that the Court lacked competence ratione temporis to examine the following four groups of alleged violations of: (1) the rights to life, humane treatment, personal liberty and freedom of thought and expression established in Articles 4, 5, 7 and 13 of the American Convention, respectively, to the detriment of Heliodoro Portugal; (2) the right to humane treatment, under Article 5 of the American Convention, to the detriment of Heliodoro Portugal’s next of kin; (3) the obligation to define the offenses of forced disappearance and torture in accordance with Article III of 8 In its first communication during the proceedings before the Commission, the State alleged for the first time the supposed failure to exhaust domestic remedies in relation to the criminal proceeding that was underway. 9 Cf. Serrano Cruz Sisters v. El Salvador. Preliminary objections. Judgment of November 23, 2004. Series C No. 118, para. 141, and Case of Salvador Chiriboga, supra note 6, para. 44.