of said exceptions uses different provisions than those used to determine violations of Articles
8 and 25 of the American Convention.
2.
Deadline for presentation of the petition
45. In the petition examined, the Commission has established that the exception contemplated
in the Convention’s Article 46(2)(b) and c) applies, so the exhaustion of domestic remedies
required by Article 46(1)(a) of the American Convention is waived. In addition, the
requirement to present the petition within six months is inapplicable, and the Commission
must decide whether the petition was lodged within a reasonable period of time, as established
in Article 32(2) of the Commission’s Rules of Procedure, i.e., considering the date on which the
alleged violation of rights occurred and the circumstances of each case.
46. On this matter, taking into account the date on which the alleged facts occurred, and the
possibility that it may be found—as alleged—that the alleged disappearance constitutes a
continuous violation of human rights, and the circumstances of El Salvador’s various domestic
remedies, the Commission finds that the petition under study was presented within a
reasonable period of time.
3.
Duplication of proceedings and international res judicata
47. The Commission understands the subject of the petition is not pending in another
international proceeding for settlement, and is not substantially the same as one previously
studied by the Commission or by another international organization. Therefore the
requirements of Articles 46(1)(c) and 47(d) of the Convention have also been met.
4.
Nature of the allegations
48. The Commission notes that the petition alleges the forced disappearance of a child,17 which
according to the petitioners’ pleading, was not an isolated fact, but part of a systematic pattern
of forced disappearance of children during the armed conflict in El Salvador between 1980 and
1992. Concerning the context in which the alleged facts occurred, the Commission notes that
the consequences of the phenomenon of forced disappearances of persons have been studied
by the Truth Commission of El Salvador. The Commission therefore concludes that the
petitioners’ complaint describes facts that, if proved, would be violations of the rights protected
in Articles 5, 7, 8, 17, 19, and 25 of the American Convention in connection with the
obligations of Articles 1(1) and 2, so the requirements of Article 47(b) have been satisfied. In
this regard, the Commission finds that information furnished by the petitioners does not tend
to establish violation of the right to a name, established in Article 18 of the Convention.
49. In addition, in application of the iura novit curia principle, in the sense that if a forced
disappearance is proved this would be a violation of the right to juridical personality and the
right to life,18 the Commission will analyze, in the merits phase, whether there is a possible
violation of the rights in Articles 3 and 4 of the American Convention in connection with the
general obligation established in Article 1(1) of the Convention to respect and ensure the
rights, given that these articles are implied in the description of the petition’s facts, although
they were not explicitly cited by the petitioners.19
V.
CONCLUSIONS
17
According to the United Nations Convention on the Rights of the Child, “a child means every human being below the
age of eighteen years unless, under the law applicable to the child, majority is attained earlier.”
18
See, IACHR Report No. 101/01, Case 10.247 et al. Extrajudicial Executions and Forced Disappearances. October 11,
2001, para. 230. See, I/A Court H.R., Castillo Páez Case. Judgment of November 3, 1997. Series C, No. 34, para. 66.
19
See Report Nº 11/05, Admissibility, Gregoria Herminia, Serapio Cristián, Julia Inés Contreras, El Salvador, February
23, 2005.
9