omission, does not constitute an adequate remedy for clarifying their
liability in the violations alleged, in the terms of Article 46(1) of the
American Convention.
36.
In view of the foregoing, the situation alleged by the
petitioners fits within the exception to the exhaustion of domestic
remedies requirement set out at Article 46(2)(b) of the Convention that
establishes that said exception applies when “the party alleging violation
of his rights has been denied access to the remedies under domestic law
or has been prevented from exhausting them.”
37.
Invoking the exceptions to the prior exhaustion rule
provided for at Article 46(2) of the Convention is closely tied to the
determination of possible violations of certain rights enshrined in it, such
as the guarantees of access to justice. Nonetheless, Article 46(2), given
its nature and purpose, has autonomous content vis-à-vis the
substantive provisions of the Convention. Therefore, the determination
as to whether the exceptions to the rule requiring exhaustion of
domestic remedies apply to the case in question must be made prior to
and separate from the analysis of the merits, since it depends on a
different standard from that used to determine the possible violation of
Articles 8 and 25 of the Convention. It should be clarified that the
causes and effects that impeded the exhaustion of domestic remedies
will be analyzed in the report the Commission adopts on the merits, in
order to determine whether there are violations of the American
Convention.
2.
Deadline for lodging a petition
38.
The American Convention establishes that in order for a
petition to be admissible by the Commission, it shall have to be
submitted within six months of the date on which the person allegedly
harmed has been notified of the final judgment. In the claim under
analysis, the IACHR has determined that the exceptions to the prior
exhaustion rule pursuant to Article 46(2)(b) of the American Convention
apply. In this respect, Article 32 of the Commission’s Rules of Procedure
establishes that in those cases in which the exceptions to the rule
requiring prior exhaustion of domestic remedies apply, the petition must
be submitted within a time which, in the Commission’s view, is
reasonable. To that end, the Commission must consider the date on
which the alleged violation is rights is said to have occurred and the
circumstances of each case.
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