22. The IACHR considers that in the instant case the State has not alleged the reasons why the
criminal proceeding under way against Mr. Tristán Donoso for the criminal offenses of slander
and libel is the adequate and effective remedy for addressing the alleged violation of Article 13
of the Convention. The petitioners have argued that they exhausted the constitutional
challenge of the provisions at Articles 172 and 175 of the Criminal Code, and the State
indicates only that it was rejected by the Supreme Court. In this case, the adequate remedy is
the constitutional challenge, and, accordingly, the petitioners have met the requirement of
prior exhaustion of domestic remedies.
b.
Time period for lodging a petition
23. Article 46(1)(b) of the Convention requires that a petition be “lodged within a period of six
months from the date on which the party alleging violation of his rights was notified of the final
judgment.” Following is the analysis of whether this requirement has been met for the
domestic remedies that involve Mr. Tristán Donoso:
24. First, with respect to the alleged violation of the right to privacy, the petitioners allege that
the criminal action brought by Mr. Tristán Donoso against the Attorney General culminated in
the dismissal with prejudice, which was reported to them on January 4, 2000. The State
agreed with the petitioners, indicating that this ruling was reported by edict of January 4, 2000
whose notice period ended January 5, without any appeal whatsoever, thus it can be
considered res judicata. The petition was filed on July 5, 2002; therefore, the IACHR concludes
that with respect to this part of the petition, the requirement that a complaint be lodged within
six months, provided for at Article 46(1)(b) of the Convention, has been met.
25. Second, with respect to the alleged violation of the right to freedom of expression, the
IACHR notes that the rejection of the constitutional challenge by the Supreme Court was
reported on June 5, 2000. The petition was lodged with the IACHR on July 5, 2000;
accordingly, the IACHR concludes that the petition was submitted within the time period
provided for in Article 46(1)(b) of the Convention.
c.
Duplication of proceedings and res judicata
26. Article 46(1)(c) establishes as an admissibility requirement that the subject matter of the
petition or communication not be pending before any other international proceeding for
settlement. In addition, Article 47(d) of the Convention establishes that a petition will be
declared inadmissible when it is substantially the same as a prior petition already examined by
the Commission or another international body. In the instant case, the parties have not alleged
or proven that the subject matter submitted to the Commission for its consideration is pending
before another international proceeding for settlement, or that it reproduces a petition already
examined by another international body, or that it reproduces a petition already examined by
the Commission. Accordingly, the Commission concludes that these requirements have been
met.
d.
Characterization of the facts alleged
27. Article 47(b) of the Convention provides that the Commission shall declare inadmissible
any petition that does not set forth facts that tend to establish a violation of the rights
guaranteed by the Convention. In the instant case, the petitioners alleged that the following
provisions were violated:
i. Article 11, due to the interference in and taping of a telephone conversation between
Mr. Tristán Donoso, in his capacity as attorney, and his client Mr. Adel Sayed, and the
later publication of its content by the Attorney General;
ii. Article 13, since the Attorney General lodged a complaint against Mr. Tristán Donoso
for the criminal offenses of slander and libel, in response to the press conference held to
report the facts mentioned in the previous paragraph, which entails a threat to and
intimidation of the exercise of the freedom of expression;
iii. Articles 8(1) and 25, insofar as the decision handed down by the competent judicial
authority in the criminal proceeding initiated by Mr. Tristán Donoso against the Attorney
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