35. The petitioners have not had their day in court. The facts of the case reveal that the Metropolitan Hospital refused to release information as to the resident physician's identity for nine years, obstructing the initiation of the criminal action. The criminal action was finally initiated ten years after the death of Laura Albán, on January 10, 1997, by the Court (Juez Quinto de lo Penal de Pichincha), on the basis of the complaint filed by the petitioners against the two doctors. It should be noted in this context that the Inter-American Court of Human Rights has stated "it is the responsibility of the State to conduct serious judicial investigations into human rights violations committed on its territory and not the responsibility of private persons." 4 36. It is not known in what year Dr. Espinoza left Ecuador, but the petitioners have presented information that he returned to Ecuador in December 1991, September 1993, June 1996 and March 1999 for short periods of time. The Court (Juzgado Quinto) dismissed the charges against Dr. Ramiro Montenegro López and (erroneously) Fernando Alarcón in its decision of December 14, 1998, but sent its decision to the Superior Court, for consultation. The Superior Court, in its decision of December 13, 1999, dismissed the charges against Dr. Montenegro López due to the running out of the statute of limitations, but initiated the trial (plenario) stage of the proceedings against Dr. Espinoza. The Prosecutors, both before the Court of first instance (Juzgado Quinto) and the Superior Court, considered that both of the accused physicians were responsible for the crime of intentional homicide. 37. Since the trial stage of the criminal proceedings have been opened against Dr. Espinoza, there is no information as to whether he has attempted to visit Ecuador since March 1999. There is also no information that the State has sought his extradition in order to allow for the judicial proceedings to proceed and for the internal remedies to be exhausted. 38. For the Commission to determine whether domestic remedies have been exhausted requires that the State alleging non-exhaustion prove that domestic remedies remain to be exhausted and that they are effective. 5 In the instant case, the State has not argued that domestic remedies remain to be exhausted as regards Dr. Montenegro Lopez, but it does argue that they remain to be exhausted as regards Dr. Espinoza. Since Dr. Montenegro was in charge of the patient, the Commission considers that his responsibility is derived from the responsibility, if any, on the part of Dr. Espinoza, since it is the latter who allegedly administered the purportedly lethal drug. The State, however, does not argue that the domestic remedies will be effective since Dr. Espinoza is a fugitive and the State has provided no information that it is taking any steps to secure jurisdiction over him. Consequently, the Commission concludes that the State has not proven that there are domestic remedies that remain to be exhausted. b. Timeliness of the Petition 39. Article 46(1)(b) of the Convention states that a petition must be lodged within a period of six months from the date on which the petitioner is notified of the final judgment exhausting domestic remedies. The petitioner lodged the case with the Commission on May 31, 2001— more than a year after it was notified by the Sixth Chamber of the Superior Court, April 26, 2000 that the statute of limitations had tolled on the charges against the attending physician. The State did not argue a failure to comply with the six months rule. 40. Article 46(2)(b) and (c) of the Convention states that the six months rule does not apply if there has been a denial of justice in the case, specifically, if the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or there has been unwarranted delay in rendering a final judgment under the aforementioned remedies. 4 See Blake Case, Judgment of January 24, 1998, at para. 92. 5 See Velásquez Rodríguez Case, Preliminary Objections, Judgment of July 29, 1988, Series C Nº 4, paragraphs 59 and 60. 6