furnished by the State does not allow it to establish that the duration of the investigations for more than ten
years following the incidents in question was the result of such complexity. It also notes that the State provided
no information on the procedural status of those investigations, the stages still pending, or the specific
formalities already carried out, and that neither did it indicate which of the alleged facts they specifically deal
with. The Commission believes that the circumstances described imply, prima facie, an unwarranted delay for
the purposes of admissibility, and so the IACHR believes that the exception provided for in Article 46(2)(c) of
the American Convention is applicable to the instant case.
47.
Regarding the amparo remedy referred to by the petitioners, the IACHR notes that under the
terms of Ecuador’s Constitutional Control Law, that remedy may be filed by the injured party, by his or her
representative, or by an “ex officio agent who provides grounds for the injured party’s inability to do so,” subject
to the requirement of ratifying that decision within the space of three days. The law also provides for the
possibility, solely in cases of environmental protection, for the remedy to be lodged by any individual or
corporate body.11 In turn, the State did not dispute this argument or provide information on any domestic
remedies and mechanisms covering the particular status of indigenous peoples in isolation that would serve to
ensure the effective protection of the collective rights of the alleged victims vis-à-vis infringements of their basic
rights.
48.
In consideration whereof, the IACHR finds that the petitioners did repeatedly request that the
State adopt measures to protect the Tagaeri and Taromenani peoples in isolation and their ancestral territory
through the available resources but that, for the purposes of admissibility, they were not afforded appropriate
and effective mechanisms for demanding that the State provide the requested protection. Consequently, given
the considerations set out above and the characteristics already described, the Commission concludes that the
requirement in question can be waived in the instant case.
49.
Finally, the triggering of the exceptions to the domestic remedy exhaustion rule provided for
in Article 46(2) of the Convention is closely related to the finding of possible violations to certain rights
provided for therein, such as guarantees of access to justice. However, Article 46(2), by nature and purpose, is
a norm with autonomous content vis-à-vis the substantive norms of the Convention. Consequently, whether or
not the Convention’s exceptions to the rule requiring the prior exhaustion of domestic remedies are applicable
in the case at hand must be decided prior to and in isolation from the analysis of the merits of the case, and that
is because it depends on a standard of appreciation that is different from the one used to determine whether
or not Articles 8 and 25 of the Convention have been violated. It should be noted that the causes and effects
that have prevented the exhaustion of domestic remedies in the case at hand will be analyzed, as relevant, in
the Commission’s report on the merits of the controversy, in determining whether or not the American
Convention was in fact violated.
2.
Filing period
50.
Under Article 46(1)(b) of the American Convention, for a petition to be admissible, it must be
lodged within a period of six months from the date on which the allegedly injured party was notified of the
judgment whereby the domestic remedies were exhausted. Article 32 of the Commission’s Rules of Procedure
provides 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.”
51.
In the case at hand, the Commission has already ruled (supra) on the waiving of the domestic
remedy exhaustion requirement. Since the petition was received on May 4, 2006, alleging incidents taking place
11 Article 48 of the Constitutional Control Law. “Amparo remedies may be filed by offended parties, either acting on their own
behalf, by means of an intermediary or attorney, or by an ex officio agent who provides grounds for the injured party’s inability to do so
and subsequently ratifies that decision within the space of three days, by the People’s Defender and his deputies and commissioners in the
cases provided for in the Constitution and by law, or by any individual or corporate body in cases involving environmental protection.”
Law No. 000, RO/99, July 2, 1997.
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