8
39.
Finally, it should be noted that the invocation of the exceptions to the rule requiring
the exhaustion of domestic remedies provided for in Article 46.2 of the Convention bears an
intimate relation with the possible violation of certain rights protected thereby, such as the
guarantees of a fair trial and of judicial protection. 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 IACHR’s report on the merits of the controversy, in determining whether or not the
American Convention was in fact violated.
C.
Timelines of the petition
40.
Under the terms of Article 46.1.b. of the Convention, for a petition to be admitted it
must have been lodged within a period of six months following the date on which the complainant
was notified of the final judgment at the national level. However, under Article 32.2 of the IACHR’s
Rules of Procedure, in cases in which the exceptions to the prior exhaustion requirement are
applicable, the petition must be presented within what the Commission deems to be a reasonable
period of time. For that purpose, the Commission is to consider the date on which the alleged
violation of rights occurred and the circumstances of each case. 11
41.
In the instant claim, the IACHR has admitted the invocation of the exception to the
rule requiring the exhaustion of domestic remedies enshrined in Article 46.2.c of the Convention.
Taking into consideration the ongoing nature of the crime allegedly committed against the alleged
victims, and the fact that investigations and judicial proceedings from 1982 and 2003 still remain
pending, the Commission believes that the petition, presented on October 27, 2004, was lodged
within a reasonable time and, consequently, it finds that the requirement contained in Article
46.1.b of the Convention has been met.
D.
Duplication and res judicata
42.
In order to rule a petition admissible, Article 46.1.c of the Convention requires that
the matters it addresses not be pending in another international proceeding for settlement, while
Article 47.d requires that it is not substantially the same as another case previously studied by the
Commission or by another international organization. In the case at hand, the petitioners attest
that the petition is not pending resolution in any other international proceeding, and nothing in the
record indicates that this is not the case. The Commission therefore concludes that the
requirements set forth in Articles 46.1.c and 47.d of the Convention have been met.
E.
Colorable claim
43.
For admissibility purposes, the Commission must decide whether the alleged facts,
if proven, could tend to establish a rights violation, as required by Article 47.b of the American
Convention, or whether the petition is “manifestly groundless” or is “obviously out of order,” in
accordance with section (c) of that same article. The level of conviction regarding those standards
11
IACHR, Report No. 63/10, Petition 1119-03, Admissibility, Punta Piedra Garifuna Community and its Members,
Honduras, March 24, 2010, paragraph 49.