44. In view of the characteristics of this case, the Commission considers that the exception
stipulated in Article 46.2.a of the American Convention is applicable, hence the requirement of
exhaustion of domestic remedies cannot be invoked.
45. It only remains to indicate that invocation of the exceptions to the rule of exhaustion of
domestic remedies stipulated in Article 46.2 of the Convention is closely linked to the
determination of possible violations of certain rights established therein, such as guarantees of
access to justice. However, Article 46.2, by its nature and purpose, is a provision with
autonomous content vis-vis the substantive provisions of the Convention. Therefore, whether
the exceptions to the rule of exhaustion of the domestic remedies established in that Article
are applicable to the case in point must be determined previously and separately from the
analysis of the merits of the case, since it relies on a different standard of evaluation from the
one used to determine a violation of Articles 8 and 25 of the Convention. It should be clarified
that the causes and effects that prevented exhaustion of domestic remedies in this case will be
examined, as relevant, in the report adopted by the Commission on the merits of the case, to
determine if they effectively constitute violations of the American Convention.
2.
Deadline for presentation
46. Pursuant to Article 46.1.b of the American Convention, a requirement for admissibility of
the petitions is that they 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. Article 32 of the
Commissions Rules of Procedures establishes that in those cases in which the exceptions to the
requirement of prior exhaustion of domestic remedies are applicable, the petition shall be
presented within a reasonable period of time, as determined by the Commission. For this
purpose, the Commission shall consider the date on which the alleged violation of rights
occurred and the circumstances of each case.
47. In the present case, the Commission decided on the applicability of the exception to the
requirement of exhaustion of domestic remedies. Considering that the military courts took the
initiative to open the investigation into the events that occurred on June 18, 2000; the actions
taken by the alleged victims to petition the State; the evolution and continuity of the
denounced situation; the resolution on January 3, 2005, the Supreme Court of Justice that
decided to deny the motion because the military court had begun to litigate the case prior to
the civilian court; the decision on May 27, 2005, of Appellate Joint Armed Forces and National
Police Court Martial amended the judgment of the court of first instance and ordered the
acquittal of the convicted; and the date the petition was lodged with the IACHR, the
Commission is of the view that the complaint was presented within a reasonable period of
time. Therefore, the requirement regarding the deadline for presentation of the petition was
met, pursuant to the terms of Article 32 of its Rules of Procedure.
3.
Duplication of international proceedings and res judicata
48. Article 46.1.c states that admission of petitions is subject to the requirement that the
matter is not pending in another international proceeding for settlement, and Article 47.d of
the Convention stipulates that the Commission shall not admit a petition that is substantially
the same as one previously studied by the Commission or by another international
organization. The petitioners have expressly stated in their petition that they have not
appealed to another international organization with regard to the events that are the subject of
this petition. Nor is there evidence in the case records that the subject of the petition is
pending a decision in another international proceeding, or that it reproduces a petition already
examined by this or another international organization. Consequently, the requirements
established in the referenced articles have been met.
4.
Characterization of the alleged events
49. As the Commission has already indicated in other cases, at this stage of the procedure, it is
not relevant to verify whether or not there was a violation of the American Convention. For the
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