noted that the military justice system is not a suitable venue for examining alleged
violations of human rights committed by members of the security forces.18
Similarly, the Inter-American Court has ruled that military justice is an adequate
forum only for trying members of the military for crimes or misdemeanors which
by their very nature infringe legal interests particular to the military order. 19 For
that reason, and in determining the admissibility of this complaint, the
Commission notes that the military justice system was used to investigate the
death of Mirey Trueba, a civilian, and to prosecute and punish a member of the
army. In that regard, it finds that the instant case constitutes an alleged lack of
access to a suitable and independent judicial remedy to investigate, prosecute,
and punish the person responsible for the death of the victim and, therefore, gives
rise to the exception provided at Article 46(2)(b) of the American Convention.
51.
Furthermore, the invocation of Article 46.2’s exceptions to the prior
exhaustion rule bears an intimate relation with the possible violation of certain
rights protected by the Convention, such as the guarantee of access to justice.
However, by its very nature and purpose, Article 46.2 is a provision with
autonomous
content
vis-à-vis
the
Convention’s
substantive
precepts.
Consequently, whether or not the Convention’s exceptions to the rule requiring the
prior exhaustion of domestic remedies are applicable in the case at hand must be
decided prior to and in isolation from the analysis of the merits of the case, and
that is because it depends on a standard of appreciation that is different from the
one used to determine whether or not Articles 8 and 25 of the Convention have
been violated.20 It should be noted that the causes and effects that have
prevented the exhaustion of domestic remedies in the case at hand will be
analyzed, as appropriate, in the Commission’s report on the merits of the dispute,
in determining whether or not the American Convention was in fact violated.
2.
Period for lodging a petition
52.
Under the terms of Article 46.1.b
be admitted it must have been lodged within a
date on which the complainant was notified of
level. The six-month rule guarantees certainty
has been adopted.
of the Convention, for a petition to
period of six months following the
the final judgment at the national
and legal stability once a decision
18 Report on Admissibility No. 84/98, Case 11.710, Carlos Manuel Prada González and Evelio
Antonio Bolaño Castro, Colombia, September 25, 1998, paragraph 41. “Military tribunals do not
guarantee that the right to a fair trial will be observed since they do not have the independence
that is a condition sine qua non for this right to be exercised. Moreover, their rulings have
frequently been biased and have failed to punish members of the security forces whose serious
involvement in serious human rights violations has been established.”
19 Report No. 74/01, Case 11.662, Giaccommo Turra, Colombia, October 10, 2001.
20 Report on Admissibility No. 93/06, Petition 972-03, Valentina Rosendo Cantu, Mexico, October
21, 2006.
13