46(2)(b) of the Convention, which provides that said exception applies when “the
party alleging violation of his rights has been denied access to the remedies under
domestic law or has been prevented from exhausting them.” Furthermore, with
respect to the case brought before the ordinary courts, the situation charged by the
petitioners is consistent with the exception to the rule of prior exhaustion of domestic
remedies provided at Article 46(2)(c) of the Convention, which provides that said
exception applies when “there has been unwarranted delay in rendering a final
judgment under the aforementioned remedies.”
36.
Invocation of the exceptions to the rule of exhaustion of domestic
remedies provided in Article 46(2) of the Convention is closely linked to the
determination of possible violations of certain rights set forth therein, such as
guarantees of access to justice. However, Article 46(2), by its nature and purpose,
is a self-contained provision vis á vis the substantive provisions contained in the
Convention. Therefore, to determine whether or not the exceptions to the rule of
exhaustion of domestic remedies provided in said provision are applicable to a
particular case requires an examination carried out in advance of and separate from
the analysis of the merits of the case, since it depends on a different standard of
appreciation to that used to establish whether or not there has been a violation of
Articles 8 and 25 of the Convention. It should be clarified that the causes and effects
that have prevented exhaustion of domestic remedies in the instant case will be
examined, where pertinent, in the report that the IACHR adopts on the merits of the
dispute, in order to determine if they do indeed constitute violations of the American
Convention.
2.
Filing period
37.
The American Convention provides that for a petition to be
admissible, it must be presented within six months of the date on which the party
alleging violation of rights was notified of the final judgment. Article 32 of the
Commission’s Rules of Procedure states that when the exceptions to the rule requiring
prior exhaustion of domestic remedies apply, the petition is to be presented within
what the Commission deems to be a reasonable period. The Commission must
therefore consider the date on which the alleged violation of rights occurred and the
circumstances of each case.
38.
In the instant case, the events that comprise the subject matter of
the petition transpired on February 27, 2001, and the petition was received on June
20, 2002, while the complaints were being heard in both the police and the ordinary
jurisdictions. As noted, the criminal proceeding was ongoing as of the date of
approval of the incident report. Accordingly, in light of the characteristics of the
instant case and the allegations advanced therein, the Commission considers that the
petition was lodged within a reasonable time and the admissibility requirement
regarding the timeliness of the petition as set forth in Article 32 of the Commission’s
Rules of Procedure must be deemed met.
3.
Duplication of proceedings and international res judicata
39.
There is nothing in the record to suggest that the subject matter of
the petition is pending in another international proceeding for settlement or that it is
substantially the same as one previously studied by the Commission or by another
international organization. Therefore, the Commission finds that the requirements
set forth in Articles 46(1)(c) and 47(d) of the Convention have been met.
4.
Characterization of the alleged facts
9