corpus motion. 14 Consequently, the Commission considers that the exceptions of Article
46(2)(b and c) of the Convention apply in this case.
28. At the same time, the IACHR does not consider filing a complaint with the International
Committee of the Red Cross to be one of the remedies that must be exhausted according to
the Convention. That Committee is a humanitarian organization and does not constitute a
judicial body.
29. Invoking the exceptions to the rule on exhaustion of domestic remedies set forth in Article
46(2) of the American Convention is closely linked to the finding of possible violations of
certain rights enshrined in the Convention itself, such as effective judicial protection. By its
nature and objective, however, Article 46(2) is a standard that is independent of other
substantive provisions of the Convention. Therefore, a determination as to whether the
exceptions to the exhaustion of domestic remedies should apply in the present case must be
made previously and separately from the analysis of the merits of the case, because the
standard for assessing those exceptions is different from that used in determining possible
violations of Articles 8 and 25 of the American Convention. The causes and effects that
prevented the exhaustion of domestic remedies will be analyzed in the Commission's report on
the merits of the dispute, in order to determine whether they constitute violations of the
Convention.
2.
Deadline for filing the petition
30. In the petition under study, the Commission has established that the exception of Article
46(2)(b and c) of the Convention is applicable, and therefore the requirement of Article
46(1)(a) to exhaust domestic remedies does not apply. Nor is the requirement to submit a
petition within six months applicable in this case, and the Commission must therefore
determine whether the petition was submitted within a reasonable time, in accordance with
Article 32(2) of the Commission's rules of procedure, i.e. taking into account the date on which
the alleged violation of rights occurred, and the circumstances of each case.
31. On this point, bearing in mind the date on which the alleged events occurred, as well as
the possibility that the reported disappearance may constitute a continuing violation of human
rights, and recalling the situation with the various domestic remedies in El Salvador, the
Commission considers that the petition was submitted within a reasonable period of time.
3.
Duplication of proceedings and res judicata
32. The Commission understands that the petition at hand is not pending in another
international proceeding for settlement, and that it is not substantially the same as one
previously studied by the Commission or by another international organization. Consequently,
the requirements of Articles 46(1)(c) and 47(d) of the Convention are fulfilled.
4.
Characterization of the alleged events
33. The Commission notes that the petition complains of the forced disappearance of a child, 15
which according to the petitioners’ allegations was not an isolated event but represented a
systematic practice involving the disappearance of children during the acute domestic conflict
in El Salvador between 1980 and 1992. In considering the context in which the alleged events
took place, the Commission will take as a point of reference the fact that the consequences of
See, Report Nº 31/01, Case 12.132, Admissibility, Ernestina and Erlinda Serrano Cruz, El Salvador, February 23,
2005, para. 23; Report Nº 56/05, Admissibility, Ana Julia and Carmelina Mejía Ramírez, El Salvador, October 12,
2005, paragraphs 33 and 34; Report Nº 53/05, Admissibility, José Rubén Rivera, El Salvador, October 12, 2005,
paragraphs 30 and 31, and Report Nº 11/05, Admissibility, Gregoria Herminia, Serapio Cristián and Julia Inés
Contreras, El Salvador, February 23, 2005, para. 32.
15
According to the UN Convention on the Rights of the Child, "a child means every human being below the age of 18
years unless under the law applicable to the child, majority is attained earlier."
14
7