and they therefore request application of the exception to exhaustion of domestic
remedies provided in Article 46.2 of the Convention.
67.
The State argues that the exception to prior exhaustion of domestic
remedies presented by the petitioners is unfounded because the corresponding
investigation is underway within the domestic jurisdiction in the Public Prosecutor’s
Office.
68.
The Commission notes that more than two years have gone by since
the death of Mr. Ruiz Fuentes, during which the State has not supplied any details of
the investigation conducted that would make it possible to conclude that the
requirement for prior exhaustion of domestic remedies should prevent admission of the
instant petition. In this sense, it should be pointed out that there are no specific
provisions in the Convention or Rules of Procedure that define the length of time that
constitutes “unwarranted delay,” meaning that the Commission evaluates each case to
determine whether a delay exists. In the present case, the Commission finds that the
State has reported only limited actions that do not go beyond the preliminary stages of
the investigation, having failed to provide to the Commission in its various
communications any details of progress or the existence, for example, of any person
accused of or charged with the homicide of Mr. Ruiz Fuentes.
69.
In the Commission’s opinion, the circumstances of the instant case,
the time elapsed from the purported execution of the alleged victim to the date of
approval of this report, during which the investigation has not gone beyond the
preliminary stage, and the apparent lack of legal diligence constitute unwarranted
delay; thus, the facts described are covered by the exception set forth in Article 46.2.c
of the American Convention.
70.
The Commission reiterates that invocation of exceptions to the
requirement for exhaustion of domestic remedies established in Article 46.2 de la
Convention is intimately linked to the determination of possible violations of certain
rights guaranteed in that treaty, such as the right to a fair trial. However, Article 46.2
of the American Convention, by its nature and purpose, is an independent provision vis
à vis the Convention’s substantive provisions. Therefore, consideration of whether the
exceptions to exhaustion of domestic remedies established in that article apply to the
case in question must be prior to and apart from the analysis of the merits of the case,
because a different standard is applicable than the one used to determine a violation of
Articles 8 and 25 of the Convention. It should be noted that the causes and effects that
have prevented the exhaustion of domestic remedies in the present case will be
analyzed, insofar as applicable, in the Commission’s report on the merits of the case,
to determine whether they in fact constitute violations of the American Convention.
71.
Based on the preceding arguments, the Commission finds sufficient
grounds to exempt the petitioners from the requirement for prior exhaustion of
domestic remedies in application of Article 46.2 of the American Convention, in
connection with the torture and alleged summary execution of Mr. Ruiz
Fuentes. Additionally, it finds that domestic remedies were exhausted with regard to
the death sentence pronounced on the alleged victim.
2.
Deadline for presentation of the petition
72.
Article 46.1.b of the Convention stipulates that in order to be
admitted, a petition must be lodged within a period of six months from the date on
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