33.Therefore, subsidarily and regarding this criminal investigation, the Inter-American
Commission decides to apply the exception envisaged in the second part of Article 46.2 of the
American Convention. As a result, the requirements envisaged in said international instrument
on the exhaustion of domestic remedies or the time-limits of six months for the submittal of
the petition are not applicable.
34.At the same time, the IACHR does not consider that a complaint lodged with the
International Committee of the Red Cross is one of the remedies that must be exhausted
according to the Convention. Said Committee is a humanitarian organization and does not
constitute a judiciary body.
35.Finally, it should be pointed out that citing the exceptions to the rule on exhaustion of
domestic remedies set forth in the American Convention is closely tied to the finding of
possible violations of certain rights enshrined in the Convention itself, such as effective judicial
protection. Article 46.2 of the American Convention, however, is a standard that is
independent of other substantive provisions of the same instrument. To determine whether the
exceptions to the exhaustion of domestic remedies also result in violations of the American
Convention in the present case, a different review must be conducted in the merits stage of
the case. This is because standards for assessing those exceptions are different from those
used when assessing possible violations of Articles 8 and 25 of the American Convention.
2.
Deadline for filing the petition
36. According to Article 46.1.b of the Convention, the petition should be lodged within certain
time-limits to be admitted, namely, within six months following the date on which the
complainant has been notified of the final judgment. In the present case, the Commission has
determined that the remedy of habeas corpus was duly exhausted. The ruling on this motion
was notified on March 11, 2003. The petition was lodged on September 11, 2003, and
therefore it was lodged within the time-limits.
37.The Commission has subsidarily reviewed the situation stemming from the criminal
investigation currently under way, and has ruled that, regarding this, the exception provided
for in the second part of Article 46.2 of the American Convention is applicable. Regarding this,
Article 32 of the Rules of Procedure of the IACHR provides that, in cases where the exceptions
to the requirement of exhaustion of domestic remedies are applicable, the petition must be
lodged within a reasonable time, in the Commission’s opinion, taking into account the date of
the alleged violation and the circumstances of each case.
38.Regarding this, taking into account the date of the alleged incidents, the possibility of facing
a situation of continued violation of human rights and the absence of elements that would
make it possible to determine whether an efficient criminal investigation has taken place, the
Commission considers that, regarding the present criminal procedures, the petition being
examined was lodged within a reasonable lapse of time.
3.
Duplication of proceedings and res judicata
39.The exceptions provided for in Article 46.1.d and in Article 47.d of the American Convention
have not been objected by the Salvadoran State nor do they stem from the information
contained in the file of the present case.
4. Characterization of the alleged events
40.The petitioners allege that the incidents that were reported point to the violation of various
rights enshrined in the American Convention on Human Rights ("the American Convention"):
right to personal integrity (Article 5); right to personal liberty (Article 7); right to a fair trial
(Article 8); right to protection of the family (Article 17); right to a name (Article 18); rights of
the child (Article 19); and right to judicial protection (Article 25), all in violation of the general
duty to respect and guarantee rights (Article 1.1).
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