22. In principle, under Article 44 of the American Convention the petitioner is authorized to lodge
petitions with the Commission. The alleged victims named in the petition are persons whose
Convention-protected rights the Colombian State undertook to respect and guarantee. As for
the respondent State, Colombia has been a State party to the American Convention since July
31, 1973, the date on which it deposited its instrument of ratification. Therefore, the Commission
is competent ratione personae to examine this petition.
23. The Commission is also competent ratione loci to take up the petition, inasmuch as it alleges
violations of Convention-protected rights said to have occurred within the territory of Colombia,
a State party to the Convention. The Commission is competent ratione temporis, since the
obligation to respect and ensure the rights protected under the American Convention was already
in effect for Colombia on the date the facts alleged were said to have occurred Finally, the
Commission is competent ratione materiae, because the petition alleges violations of rights
protected under the American Convention.
B.
Admissibility requirements
1.
Exhaustion of domestic remedies and timeliness of the petition
24. Article 46(1)(a) of the American Convention requires that for petitions to be admissible, the
remedies under domestic law must have been pursued and exhausted in accordance with
generally recognized principles of international law.
25. Article 46(2) of the Convention states that the rule requiring exhaustion of local remedies
shall not apply when:
a. the domestic legislation of the state concerned does not afford due process of
law for the protection of the right or rights that have allegedly been violated;
b. the party alleging violation of his rights has been denied access to the remedies
under domestic law or has been prevented from exhausting them; or
c. there has been unwarranted delay in rendering a final judgment under the
aforementioned remedies.
As the Inter-American Court of Human Rights has written, when a State alleges a petitioner’s
failure to exhaust the remedies under domestic law, it bears the burden of showing that remedies
remain that are “suitable” to address an infringement of a legal right; in other words, the function
of the remedies within the domestic legal system is suitable to protect the violated right.11
26. In the present case, the State is arguing that the petition does not satisfy the rule of prior
exhaustion of domestic remedies, stipulated in Article 46(1)(a) of the American Convention,
since a criminal case on the subject matter of the complaint is pending. 12 The petitioner, for its
part, is alleging that the exception provided for in Article 46(2)(c) to the rule requiring exhaustion
of local remedies applies in this case because of the unwarranted delay and ineffectiveness of
the criminal investigation at the domestic level.
27. The Commission notes that more than four years have passed since the events that are the
subject of the complaint occurred, yet the investigation instituted by the prosecutor’s office into
the crimes of forced displacement and threats are still only in the preliminary phase and the
authors of the crimes have not been identified. The Commission observes that as a general rule,
a criminal investigation should be conducted swiftly in order to protect the victims’ interests,
preserve the evidence and even protect the rights of those persons who become suspects during
the course of the investigation. As the Inter-American Court has written, while every criminal
investigation must meet certain legal requirements, the rule of prior exhaustion must never lead
to a halt or delay that would render international action in support of the defenseless victim
11
12
I/A Court H.R., Velásquez Rodríguez Case. Judgment of July 29, 1988. Series C No. 4, paragraph 64.
The State’s brief of observations, DDH.GOI/60162/2802, received at the IACHR on December 12, 2006.
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