instituted in the domestic courts in connection with the facts alleged in the
complaint are still pending. It argues, therefore, that the exception allowed
under Article 46(2)(a) of the Convention does not apply. The petitioners, for
their part, are invoking the exceptions allowed under Articles 46(2)(a) and (c)
on the grounds that effective remedies for due process do not exist and based
on the unwarranted delay in rendering a final judgment on the domestic
remedies used to assert violation of the victims’ rights. They contend that it
is because of the unwarranted delay and the negligence on the part of the
authorities that they do not yet have a definitive judgment in the criminal
case, and there is an imminent risk that the case will go completely
unpunished.
39.
The Commission’s jurisprudence recognizes that whenever a crime is
committed that is publicly prosecutable, the State has an obligation to set the
criminal law system in motion and to prosecute the case until the end 27 and
that, in these cases, this is the appropriate avenue to pursue to ascertain the
facts, try those responsible, establish the appropriate penalties, and make
possible other forms of reparations. The Commission is of the view that the
facts alleged by the petitioners in the instant case involve a possible violation
of the basic right to humane treatment, by virtue of the alleged rape of a
child. Under domestic law, this is an offense that is publicly prosecutable and
therefore, it is this process, set in motion by the State itself, which has to be
examined for purposes of determining the admissibility of the complaint.
40.
The Commission notes in this regard, that the Convention of Belém do
Pará affirms that the due diligence obligation has special connotations in cases
involving violence against women. This instrument also stipulates that in
exercising due diligence in response to these acts of violence, the State must
take special account of the particular vulnerability of women to violence and
discrimination by reason of being a child, among other risk factors.28
See, for example, IACHR, Report No. 94/06, Petition 540-04, Admissibility, Inés
Fernández Ortega et al., Mexico, October 21, 2006, para. 23; IACHR, Report No.
93/06, Petition 972-03, Admissibility, Valentina Rosendo Cantú et al., Mexico,
October 21, 2006, para. 27; IACHR, Report No. 62/00, Case 11,727, Hernando Osorio
Correa, Annual Report of the IACHR 2000, para. 24; IACHR, Report No. 52/97, Case
11,218, Arges Sequeira Mangas, Nicaragua, Annual Report of the IACHR 1997,
paragraphs 96 and 97; and IACHR, Report No. 55/97, Case 11,137, Argentina,
Annual Report of the IACHR 1997, para. 392
28
Article 9, Convention of Belém do Pará
27
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