7
33.
The invocation of the exceptions to the prior exhaustion of domestic remedies rule
provided in Article 46(2) of the Convention is closely linked to the determination of possible
violations of certain rights enshrined therein, such as the guarantees on access to justice. How ever,
given its nature and purpose, Article 46(2) is a rule w ith autonomous content vis-à-vis the
substantive rules of the Convention. Therefore, the det ermination as to w hether the exceptions to
the rule of prior exhaustion of domestic remedies are applicable to the case in question must be
made prior to and separately from the analysis of the merits of the case, in that it depends on a
standard of assessment different from that used to determine the possible violation of Articles 8 and
25 of the Convention. It should be made clear that the causes and effects that prevented the
exhaustion of domestic remedies w ill be analyzed in the report that the Commission adopts on the
merits of the dispute, in order to establish w hether there are violations of the American Convention .
2.
Deadline for submitting the petition
34.
The American Convention provides that in order for a petition to be ruled admissible
by the Commission it must be submitted w ithin a period of six months after the date on w hich the
alleged injured party is notified of a final decision. In the complaint under review here, the IACHR
has established the application of the exceptions to the exhaustion of domestic remedies in
accordance w ith Article 46(2)(c) of the American Convention. In this regard, Article 32 of the
Commission’ s Rules of Procedure establishes that in cases in w hich the exceptions to the prior
exhaustion of domestic remedies are applicable, the petition must be submitted w ithin a reasonable
period of time, in the judgment of the Commission. For this purpose, the Commission must consider
the date on w hich the alleged violation of rights occurred and the circumstances in each case.
35.
In the instant case, the petition w as received in December 1990 and the event
covered in the complaint occurred on November 19, 1987. The case involves an alleged forced
disappearance, a crime that as continuously held by the case law of the inter-American system
constitutes an ongoing violation, and its alleged effects in terms, inter alia, of the alleged failure to
administer justice continue up to the present . Therefore, in view of the context and characteristics
of the instant case, as w ell as the fact that an investigation is still suspended in the preliminary
investigation phase, the Commission deems that the petition w as submitted w ithin a reasonable
period of time and the admissibility requirement w ith respect to the deadline for submission should
be considered satisfied.
3.
Duplication of proceedings and international res judicata
36.
The Commission notes that the State reported that the facts in this petition have
been under review by the United Nations Working Group on Enforced or Involuntary Disappearances
since December 9, 1998. Article 46(1)(c) of the Convention provides that in order for a petition to
be admitted by the Commission it shall be required that “ the subject of the petition or
communication is not pending in another international proceeding for settlement ” and Article 47(d)
of the Convention provides that the Commission shall declare inadmissible any petition or
communication w hen it is “ substantially the same as one previously studied by the Commission or
by another international organization.”
37.
The Commission has maintained that in order to deem that there is duplication or
international res judicata in a case the petition must be under consideration or have been decided 7
by an international organization that is competent to adopt decisions on the specific facts contained
in the petition as w ell as measures intended to bring about the effective settlement of the dispute
7
See IACHR. Report No. 89/05, Petition 12.103, Inadmissibility, Cecilia Rosa Núñez Chipana, Peru, October 24,
2005, para. 37. IACHR. Report No. 96/98, Petition 11.828, Admissibility, Peter Blaine, Jamaica, December 17, 1998, para.
40.