6
basically involve questions of property and, therefore, are not effective in this case 4. As for the constitutional
action for noncompliance, it is clear that this action, having been created in the Constitution that came into
force in October 2009, was established over five and a half years after the reported events began.
37.
The Commission therefore concludes that in this case the exceptions to the exhaustion of
domestic remedies rule, contained in Articles 46.2, sections(a) and (b) of the American Convention, do
apply.
C.
Deadline for presentation of the petition
38.
The American Convention provides that, in order for a petition to be admitted by the
Commission, it must have been presented within six months from the date on which the allegedly injured
party was notified of the final decision. In this case, the IACHR has applied the exceptions to the exhaustion
of domestic remedies rule under Article 46.2, (a) and (b), of the Convention. Article 32 of the Rules of
Procedure of the Commission provides that, when such exceptions apply, the petition must have been
presented within what the Commission deems a reasonable period of time. For that purpose the
Commission must consider the date on which the alleged violation of rights occurred and the particular
circumstances of the case.
39.
In this case, the petition was received on March 1, 2007. The events described in the
complaint began in early January 2004 and, as they involve an alleged disappearance, their effects extend
to the present. In view of the nature of this case, therefore, and of the fact that the remedies available
under domestic law to correct the situation reported have proven neither appropriate nor effective, the
Commission deems the petition to have been presented within a reasonable period of time.
D.
Duplication of procedures and international res judicata
40.
The case file shows no evidence that the subject of the petition is pending in another
international proceeding for settlement or that it duplicates one previously studied by the Commission or by
another international organization. The Commission finds therefore that the requirements set forth in
Articles 46.1.c and 47.d of the Convention have been met.
E.
Nature of the allegations
41.
For purposes of admissibility, the Commission must decide whether the petition describes
events that could constitute a violation of rights as stipulated in Article 47.b of the American Convention;
or, conversely, is "manifestly groundless" or "out of order" according to section (c) of that article. The
standard for assessing those requirements is different from the one used to rule on the merits of a petition.
The Commission must make a prima facie assessment as to whether the petition includes the basis for the
possible or potential violation of a right guaranteed by the Convention; it need not establish that rights were
indeed violated. This determination constitutes a summary examination that does not prejudge or rule upon
the merits 5.
42.
In view of the arguments of fact and of law presented by the parties, and of the nature of
the matter placed before it, the IACHR finds that the events alleged by the petitioners could constitute
possible violations of the rights protected in Articles 4, 5, 7, 8, and 25 of the American Convention, to the
detriment of Mr. Luis E. Guachalá Chimbó, in keeping with Articles 1.1 and 2 of that convention, as well as
of Articles 5, 8, and 25 of the American Convention, to the detriment of his mother, Ms. Zoila Rosario
Guachalá Jarro.
4
IACHR, Report No. 136/09, P-321-05, Admissibility, María Inés Chinchilla Sandoval, Guatemala, November 13, 2009,
para. 47.
5
See, among other precedents: IACHR, Report No. 12/10, Case 12,106, Admissibility, Enrique Hermann Pfister Frías and
Lucrecia Pfister Frías, Argentina, March 16, 2010, para. 46; IACHR, Report No. 10/10, Petition No. 214-08, Admissibility, Koempai et
al., Suriname, March 16, 2010, para. 43.