31.
In view of the allegations of the parties, it is necessary to clarify which domestic remedies
must be exhausted, in light of the jurisprudence of the Inter-American system. The Commission notes that the
subject of this petition refers to the events related to the alleged forced disappearance of Pedro Julio Movilla
Galarcio and aspects related to the investigations of the circumstances in which those events took place. The
precedents established by the Commission indicate that whenever a crime that can be prosecuted ex officio is
committed, the State has the obligation to pursue and promote the criminal process3 and in such cases this is
the suitable route for clarifying the facts, prosecuting those responsible, and establishing the corresponding
criminal penalties, as well as making possible other means of reparation that are monetary in nature.
32.
As a general rule, the Commission has indicated that a criminal investigation should be
conducted promptly in order to protect the interests of the victim, preserve the evidence, and even safeguard
the rights of anyone who in the context of the investigation may be considered a suspect.4 The Commission
notes that the information provided by both parties indicates that the investigation meant to clarify the facts
remains open, without having established material and intellectual responsibility for the offenses covered by
this petition. Therefore, given the characteristics of the petition and the time elapsed since the events covered
by the complaint, the Commission believes that the exception provided in Article 46.2 c) of the Convention is
applicable with respect to the unwarranted delay in the conduct of domestic judicial proceedings, so that the
requisite of exhaustion of domestic remedies cannot be imposed.
33.
The invocation of the exceptions to the rule of exhausting domestic remedies as provided in
Article 46.2 of the Convention is closely linked to the determination of possible violations of certain rights
enshrined therein, such as the guarantees on access to justice. However, Article 46.2, given its nature and
purpose, is a standard with autonomous content vis á vis the substantive standards of the Convention. Thus, a
determination as to whether the exceptions to the exhaustion of domestic remedies rule are applicable in the
instant case must be made prior to and separate from the analysis of the merits of the case, since it depends on
a standard of assessment different from that used to determine the possible violation of Articles 8 and 25 of
the Convention. It should be made clear that the causes and effects that prevented the exhaustion of the
domestic remedies will be analyzed in the report the Commission adopts on the merits of the dispute, in order
to determine whether there are violations of the American Convention.
2.
Timeliness of the petition
34.
In accordance with the provisions of Article 46.1 b) of the American Convention, in order for
a petition to be admitted by the Commission it must be submitted within a period of six months following the
date on which the party whose rights have allegedly been violated was notified of the final decision. Article 32
of the Commission’s Rules of Procedure establishes that in cases where the 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 on which the alleged violation
of rights occurred and the circumstances in each case.
35.
In the complaint under review, the Commission has concluded that it is appropriate to apply
the exception to the requirement of prior exhaustion of domestic remedies, and thus it falls to the IACHR to
analyze whether the petition was submitted within a reasonable period of time based on the specific
circumstances. In this matter, the petition was received on June 17, 1996 and the events covered in the
complaint began on May 13, 1993 and the effects thereof continue to this day due to the alleged lack of results
in the administration of justice. Therefore, in view of the context and characteristics of this petition, as well as
the fact that criminal processes are pending, the Commission believes that the petition was submitted within a
reasonable period of time and that the admissibility requirement with respect to the timeliness for its
presentation should be deemed to have been met.
3 IACHR, Report No. 52/97, Case 11.218, Merits, Arges Sequeira Mangas, Nicaragua, 1997 Annual Report of the IACHR, paras. 96
and 97. See also Report No. 55/97, Case 11.137, Merits, Abella et al., Argentina, para. 392.
4
para. 28.
IACHR, Report No. 151/11, Petition 1077-06, Admissibility, Luis Giován Laverde Moreno et al. Colombia, November 2, 2011,
5