4 23. The petitioners are empowered, in principle, by Article 44 of the American Convention to lodge petitions with the IACHR. The petition names as alleged victims natural persons in respect of whom the Ecuadorian State undertook to respect and guarantee the rights enshrined in the American Convention. As for the State, the Commission indicates that Ecuador has been a state party to the American Convention since December 28, 1977, on which date it deposited its instrument of ratification. Therefore, the Commission is competent ratione personae to consider the petition. In addition, the Commission is competent ratione loci to consider the petition, since it alleges violations of rights protected in the American Convention that are said to have taken place within the territory of the Republic of Ecuador, a state party to that treaty. 24. The Commission is competent ratione temporis because the obligation to respect and guarantee the rights protected in the American Convention was already in force for the State on the date on which the events described in the petition allegedly took place. The Commission notes that the InterAmerican Convention on Forced Disappearance of Persons (hereinafter “the Convention on Forced Disappearance”) entered into force for Ecuador on July 27, 2006. Therefore the Commission is competent ratione temporis with respect to the obligation set forth in Article I.b thereof, by virtue of the continuing lack of clarification as to the crime of forced disappearance. 25. Finally, the Commission is competent ratione materiae because the petition alleges possible violations of human rights protected by the American Convention. B. Exhaustion of domestic remedies 26. Article 46.1.a of the American Convention provides that in order for a petition concerning alleged violations of the Convention to be admissible, the remedies available under domestic law must have been exhausted in accordance with generally recognized principles of international law. Article 46.2 of the Convention provides that this requirement does not apply when: 1. 2. 3. The State’s domestic law does not afford due process of law for the protection of the right or rights allegedly violated; The alleged victim has not had access to, or has been prevented from exhausting, the remedies under domestic law; or There has been an unwarranted delay in rendering a judgment under those remedies. 27. As established by the Inter-American Court, whenever a State argues that a petitioner has failed to exhaust domestic remedies, the State bears the burden of proof that the remedies not exhausted are effective in compensating for the alleged violation, i.e., that the function of those remedies under the system of domestic law is effective in protecting the legal right allegedly violated 1. 28. The petitioners indicate that on January 21, 2004, Ms. Zoila R. Chimbó J., mother of the alleged victim, submitted a complaint to the Judicial Police of Pichincha. A preliminary investigation was thus opened, but it was later set aside by the inspector’s office in charge, on August 29, 2005. 29. In addition, on November 22, 2004, a writ of habeas corpus was pursued with the Mayor of the Municipality of Quito. Subsequently, on December 16, 2004, a petition to expedite court action was submitted in connection with the earlier motion, but no answer to it was received. Later, the petitioners allegedly visited the Habeas Corpus Unit of the Municipality of Quito several times, determined to resolve this question; they allege, however, that the reply given was that the case had been set aside and no ruling would be issued. 30. In view of the lack of results under the habeas corpus motion, the petitioners appealed to the Constitutional Tribunal on April 19, 2005. Because the country had no Constitutional Tribunal for several 1 Article 31.3 of the Rules of Procedure of the IACHR. See also Inter-American Court of Human Rights, Case of Velásquez Rodríguez v. Honduras. Judgment of July 29, 1988. Series C No. 4, para. 64.