admissibility requirement established in Article 46(1)(a) of the American Convention, the
proceeding opened in the military jurisdiction to investigate the enforced disappearance of Jeremías
Osorio Rivera did not constitute an effective remedy and “has no legal relevance when analyzing
the requirement of exhaustion of domestic remedies and, thus, with regard to the exhaustion of
the six-month period.” Lastly, the representatives indicated that, as the Commission had stated in
its Admissibility Report, “[t]he passage of almost 19 years from the presumed enforced
disappearance of Jeremías Osorio Rivera without his whereabouts having been determined and
without a final decision having been issued establishing what happened and punishing all those
responsible,” was sufficient to conclude that, in the instant case, there had been an unwarranted
delay in the terms of Article 46(2)(c) of the American Convention. Consequently, they asked the
Court to declare that the preliminary objection filed by the State was unfounded.
A.2. Considerations of the Court
19.
Regarding the first preliminary objection, the Court notes that the arguments of the State
are not related to the existence of a serious error that might have violated its right of defense, nor
do they prove the specific prejudice supposedly caused to its right of defense in the proceedings
before the Commission. 9 The State’s arguments relate to a simple question of the admissibility of a
petition before the inter-American system.
20.
The pertinent part of Article 46(1) of the Convention indicates the following:
Admission by the Commission of a petition or communication lodged in accordance with Articles 44 or 45 shall
be subject to the following requirements:
(a) that the remedies under domestic law have been pursued and exhausted in accordance with generally
recognized principles of international law;
(b) that the petition or communication is 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; […]
21.
In its case law the Court has developed the assumptions to evaluate a preliminary objection
related to the rule of the six-month period. First, the Court will analyze the procedural issues,
which relate to the procedural moment at which the objection was filed; in other words, whether it
was filed opportunely in the proceedings before the Commission. 10 In addition, it will determine its
inadmissibility if the State has asserted that domestic remedies have not been exhausted, while
also alleging an objection on non-compliance with the six-month period, in view of the intrinsic
contradiction or incompatibility between these two arguments, as has been affirmed previously in
several cases involving Peru. 11 In this regard, it should be recalled that the time frame established
in Article 46(1)(b) of the Convention depends on the exhaustion of domestic remedies. 12 Regarding
the requirements concerning the final judgment and its notification, given their close relationship to
the rule of the exhaustion of domestic remedies, the specific circumstances of the case must be
9
Cf. Case the Dismissed Congressional Employees (Aguado Alfaro et al.) v. Peru. Preliminary objections, merits,
reparations and costs. Judgment of November 24, 2006. Series C No. 158, para. 66, and Case of Mémoli v. Argentina.
Preliminary objections, merits, reparations and costs. Judgment of August 22, 2013. Series C No. 265, para. 25.
10
Cf. Case of Neira Alegría et al. v. Peru. Preliminary objections. Judgment of December 11, 1991. Series C No. 13,
para. 30, and Case of Durand and Ugarte v. Peru. Preliminary objections. Judgment of May 28, 1999. Series C No. 50, para.
58.
11
Cf. Case of Neira Alegría et al. v. Peru. Preliminary objections, supra, paras. 25 to 31; Case of Cantoral Benavides
v. Peru. Preliminary objections. Judgment of September 3, 1998. Series C No. 40, para. 38, and Case of Durand and Ugarte
v. Peru. Preliminary objections, supra, para. 58.
12
Cf. Case of Neira Alegría et al. v. Peru. Preliminary objections, supra, para. 30.
10