principles of international law.” Nonetheless, Article 46(2) provides that this requirement
shall not apply whenever:
(a)
the domestic legislation of the state concerned does not afford due process of
law for the protection of the right or rights that have allegedly been violated;
(b)
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,
(c)
there has been unwarranted delay in rendering a final judgment under the
aforementioned remedies.
34.
Without getting into an analysis of the arguments put forth by the parties
concerning the alleged violation of judicial guarantees and judicial protection, the InterAmerican Commission observes, preliminarily, that as of the date of the approval of this
report, more than eight years have gone by since the murder of Marcia Barbosa. The incident
was duly reported to the authorities, but neither a police investigation or a prosecutorial
accusation could go forward, for the suspect enjoyed legislative immunity. This last obstacle
was removed once he was no longer a member of the legislature. Moreover, Constitutional
Amendment No. 35/2001 was passed into law, and an indictment was handed down against
the former legislator on July 27, 2005.
35.
That the actions against the suspect were taken up anew in March 2003 is
taken as true, for the State did not refute this fact. As of the date of the preparation of this
report, it is said that more than four years have elapsed since the judicial procedure was
reopen and recently the case would have been included on the docket to be tried on
September 26, 2007 by the competent organ. Since the punishable act occurred, as has
already been said, more than eight years have gone by without any determination of who was
responsible for it.
36.
In addition, the Inter-American Commission observes that the petitioners
allege that the facts of the case unfold in a context of cases in which women are victims of
violence, which is expressed in an excessive delay in its processing, resulting in impunity for
the perpetrators of these acts. While the State alleges that the judicial process is advancing
accordingly to the law, it has not presented information that expresses or justifies the time
length it has taken to the judicial process.
37.
In light of all the foregoing, and from the documents in the record of this
matter, the Inter-American Commission establishes – for purposes of admissibility – that
there has been an unwarranted delay in the decision of the judicial bodies of Brazil with
respect to the facts alleged. Accordingly, the IACHR applies to this matter the exception to
the prior exhaustion requirement found at Article 46(2)(c) of the American Convention.
3.
Time period for submission
38.
Under Article 46(1)(b) of the American Convention, it is an admissibility
requirement that petitions be submitted within six months of notice to the injured party of
the judgment exhausting domestic remedies.
39.
Article 32(2) of the Rules of Procedure of the Commission mandates that in
those cases in which exceptions to the prior exhaustion requirement apply, the petition should
be submitted in a reasonable time, based on the Commission’s judgment: To this end, the
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos