Article 46(2) of the Convention, by its nature and purpose, has a content that
is independent of and separate from the substantive norms of the
Convention. Therefore, the determination as to whether the exceptions to the
domestic remedies rule apply to the case in question must be made prior to
and separate from the examination of the merits, since it hinges on a standard
of assessment different from the one used to establish the violation of Articles
8 and 25 of the Convention. The Commission will examine the factors that
prevented the internal remedies from being exhausted when the time comes
to issue its report on the merits, so as to determine whether rights recognized
in the American Convention have been violated.
2.
Timeliness of the petition
45.
The American Convention provides that in order for the Commission to
be able to admit a petition, the latter must be lodged within six months of the
date on which the alleged aggrieved party was notified of the final decision in
his case. The IACHR has established that the Article 46(2)(c) exception to the
rule requiring exhaustion of domestic remedies applies in the instant
case. Article 32 of the Commission’s Rules of Procedure provides that in those
cases in which the exceptions to the requirement of prior exhaustion of
domestic remedies are applicable, the petition is to be presented within a
reasonable period of time, as determined by the Commission. For this
purpose, the Commission will consider the date on which the alleged violation
of rights occurred and the circumstances of each case.
46.
In the instant case, the petition was received on October 2, 2006, the
facts that are the subject of the complaint occurred starting in 2002 and the
effects in terms of the alleged failure of the administration of justice to produce
any results are ongoing at the present time. Therefore, given the context and
characteristics of the present case, the Commission finds that the petition was
filed within a reasonable period of time and that the admissibility requirement
regarding the time period for lodging the complaint is deemed to have been
satisfied.
3.
Duplication of procedure
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