43. Therefore, without prejudice to anything that may be disposed regarding the merits of the
case in the future by the Commission, the Commission concludes that there was an unwarranted
delay in the proceedings of the remedies concerning legal guardianship and visiting rights and this
excuses the petitioner from the obligation to invoke additional exceptional remedies. It should be
noted that although the application of this exception is closely linked with issues relating to
appropriate access to protection measures and judicial guarantees, the former is decided in line
with the admissibility criteria of the system which differ from those that are applicable during the
merits stage. The causes that prevented the opportune exhaustion of remedies available under
domestic law, as well as any possible consequences, will be examined in the extent in which they
are relevant when the Commission examines the merits of the case.
2.
Deadline for presentation of petitions
44. In accordance with Article 46.1 of the Convention, for a petition to be admissible it must be
lodged before the stipulated deadline, that is, within six months from the date on which the party
alleging violation of his rights was notified of the final judgment. The six months rule ensures legal
certainty and stability once a judgment has been reached.
45. Article 32 of the Rules of Procedure of the Commission defines the principle described above
and indicates that the rule is not applicable “in those cases in which the exceptions to the
requirement of prior exhaustion of domestic remedies are applicable.” This Article states that in
these cases, the petition shall be presented “within a reasonable period of time, as determined by
the Commission. For this purpose, the Commission shall consider the date on which the alleged
violation of rights occurred and the circumstances of each case.”
46. In the present case, we should not forget that Leonardo Aníbal Javier Fornerón lodged his
petition on October 14, 2004 having been notified on April 14, 2004 of the judgment which
rejected the extraordinary federal appeal, in the case entitled “Enríquez Milagros s/Judicial
guardianship.” It should also be taken into account that at the time the petition was lodged,
judgment was still pending in the proceedings regarding visiting rights brought on November 15,
2001. The Commission has concluded that due to the prolonged duration of the ordinary
proceedings it is appropriate to exempt this petition from the requirement of prior exhaustion of
additional extraordinary remedies. Therefore, the Commission considers that the petition was
lodged within a reasonable period and that the requirements of Article 46.1.b have been
observed.
3.
Duplication of procedures and
res judicata
47. Article 46.1.c states that the admission of a petition shall be subject to the requirement that
the subject “is not pending in another international proceeding for settlement” and Article 47.d of
the Convention establishes that the Commission shall consider inadmissible any petition “that is
substantially the same as one previously studied by the Commission or by another international
organization.” In this case, the parties have not alleged any of the circumstances that would give
rise to inadmissibility, and nor do they occur in the proceedings.
4.
Description of the alleged facts
48. Article 47.b of the American Convention considers inadmissible any petition that does not
state facts that tend to establish a violation of the rights guaranteed by the Convention.
49. It is evident that the State questions the admissibility of this petition only on the grounds of
the nonexhaustion of remedies available under domestic law, an issue that was examined by the
Commission in the relevant section. The State did not present any specific allegations concerning
Article 47.b of the American Convention.
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