42.
At the same time, the invocation of the exceptions to the prior exhaustion rule, provided for
in Article 46(46.2) of the Convention is closely linked to the determination of possible violations of
substantive rights set forth in the Convention, such as the 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, the determination as to whether the exceptions to the rule on the exhaustion of
domestic remedies stipulated in that provision apply in this case should be made separately, and prior to the
examination on the merits, since it depends upon a standard of judgment distinct from that used to determine
the 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 whether they constitute
violations of the American Convention.
2.
Deadline for presentation of a petition before the Commission
43.
Article 46.1.b. of the Convention establishes that a petition may be admitted if it is lodged
within a period of six months from the date on which the interested party was notified of the final judgment
that exhausted domestic jurisdiction.
44.
In the foregoing section, the Commission established that the exceptions provided for in
Article 46 (2) (a and b) of the Convention applied to this case. Moreover, for purposes of analyzing its
admissibility, the Commission noted that the State had not provided information about any progress with
respect to criminal investigation into the alleged facts.
45.
Under these circumstances, and considering that there is still no criminal investigation into
the alleged arbitrary detention of Mr. Jorge Vásquez Durand, the Commission considers that the petition was
presented within a reasonable period of time and therefore meets the requirements of Article 46 of the
American Convention.
3.
Duplication of international proceedings and res judicata
46.
The case records do not show that the subject of the petition is pending other international
settlement procedures, or that it replicates a petition already examined by this or another international
organization. Therefore, the requirements set forth in Articles 46(1)(c) and 47(d) of the Convention are
considered as having been met.
4.
Characterization of the facts alleged
47.
For the purposes of admissibility, the IACHR must decide, pursuant to Article 47(b) of the
American Convention, whether the petition states facts that could constitute a violation of same, or, pursuant
to paragraph (c) of the same article, whether the petition is “manifestly groundless” or “obviously out of
order." The standard by which to assess these extremes is different from the one needed to decide the merits
of a petition. The IACHR must perform a prima facie evaluation and determine whether the complaint
provides grounds for an apparent or potential violation of a right guaranteed by the American Convention,
not whether the violation has in fact occurred. This examination is a summary analysis that does not imply a
prejudgment or preliminary opinion on the merits.
48.
Furthermore, neither the American Convention nor the Rules of Procedure of the IACHR
require that the petitioners identify the specific rights allegedly violated by the State in a matter submitted to
the Commission, though the petitioners may do so. Rather, it is up to the Commission, based on the case-law
of the system, to determine in its admissibility reports which provision of the relevant inter-American
instruments is applicable or could be established as having been violated, if the facts alleged are sufficiently
proven.
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