45. Thus, the formal requirement for the nonexistence of domestic remedies to guarantee the
principle of due process (Article 46(2)(a) of the Convention) refers not only to a formal
absence of domestic legal remedies, but also to instances in which they are not adequate; in
addition, denying justice (Article 46(2)(b) of the Convention) and unjustifiably delaying it
(Article 46(2)(c) of the Convention) are also related to the effectiveness of those remedies. 22
46. As the Inter-American Court has maintained, generally recognized principles of
international law require that domestic remedies formally exist and that they are adequate for
protecting the violated legal situation and effective in producing the result for which they were
designed. 23 For that reason, their exhaustion is not to be understood as requiring mechanical
attempts at formal procedures, but rather as requiring a case-by-case analysis of the
reasonable possibility of obtaining a remedy. 24
47. Similarly, the right to invoke the nonexhaustion of the domestic remedies as grounds for
declaring a petition inadmissible cannot lead "to a halt or delay that would render international
action in support of the defenseless victim ineffective." 25 In other words, if domestic remedies
suffer unwarranted delays in processing, 26 it can be deduced that they have lost their
effectiveness for producing the result for which they were created, which "renders the victim
defenseless." 27 It is in such situations that the mechanisms for international protection should
be brought into play, including the exceptions provided for in Article 46(2) of the Convention.
48. In light of the foregoing, the Commission concludes that the complaint under analysis is
admissible because the State made no objection asserting the nonexhaustion of domestic
remedies (Article 46(1)(a) of the Convention). Moreover, the Commission notes that there has
been a delay in the criminal proceedings, which relieves the petitioners from the requirement
of exhausting said remedies pursuant to the terms of Article 46(2)(c).
2.
Submission Period
49. Article 46(1)(b) of the American Convention stipulates that for a petition to be admitted, it
must be "lodged within a period of six months from the date on which the party alleging
violation of his rights was notified of the final judgment."
50. After concluding in the preceding section that there was an unwarranted delay in
processing the domestic remedies, the Commission rules that in the case under analysis the
six month period granted for lodging a petition does not apply, pursuant to the terms of Article
38(2) of the Commission’s Regulations.
51. The stipulation regarding timing applicable to this case appears in Article 38(2) of the
Commission’s Regulations: "the deadline for presentation of a petition to the Commission shall
be within a reasonable period of time . . . from the date on which the alleged violation of rights
has occurred."
22 Mónica Pinto, La Denuncia ante la Comisión Interamericana de Derechos Humanos, Editores del Puerto, 1993, p.
64.
23 Inter-Am.Ct.H.R., Velásquez Rodríguez Case, op. cit., paragraphs 62-66; Fairén Garbi and Solís Corrales Case,
Preliminary Objections, 15 March 1989, paragraphs 86-90; Godínez Cruz Case, Judgment of 20 January 1989,
paragraphs 65-69.
24 Inter-Am.Ct.H.R., Velásquez Rodríguez Judgment, op. cit., paragraph 72; Fairén Garbi and Solís Corrales
Judgment, op. cit., paragraph 97; Godínez Cruz Judgment, 20 January 1989, Series C, No. 5, paragraph 75.
25 Inter-Am.Ct.H.R., Judgment of 26 June 1987, paragraph 95
26 Delays of this kind have a negative effect on the effectiveness of the domestic remedies in that they lead to a
deterioration of the evidence, particularly that of witnesses who, after so many years, either relocate or tend to forget
the facts. This definitely undermines the effectiveness of procedures aimed at identifying responsibilities and convicting
the guilty.
27 Inter-Am.Ct.H.R., Godínez Cruz Case, op. cit., paragraph 95.
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