1.
Exhaustion of domestic remedies
19. As regards this requirement, the Commission notes that the State explicitly invoked the failure
to exhaust domestic remedies; consequently, a detailed analysis of this question is necessary.
20. The parties’ submissions refer to the requirements set in Mexican law for amparo remedies to
be filed and processed. The Inter-American Commission holds, for the purposes of admissibility,
that the fact that in this specific case it was impossible to meet those requirements makes that
remedy ineffective in providing the protection that it could, in other circumstances, possibly
provide. In addition, the Commission notes that more than thirty years have gone by since the
incident allegedly occurred and more than thirteen years since the first complaint was filed,
without the competent authorities determining the whereabouts of the alleged victim or the fate of
his remains and, clearly, without identifying or punishing the guilty. In this case, therefore, there
has been an unwarranted delay and the domestic remedies available in Mexico have proved
ineffective.
21. The Commission must take into account the reports drawn up on the general situation in the
region;15 the claimed general impossibility of securing access to justice in this specific case; the
establishment of the FEMOSSP; the State’s exclusive control over the means and evidence in the
investigation; and the various attempts made by the alleged victim’s next-of-kin to report the
alleged incident to the authorities. With that in mind, and without prejudging the merits of the
matter, the IACHR believes that at the time of Rosendo Radilla Pacheco’s alleged forced
disappearance there was, among the population, a grounded fear that could justify the
impossibility of reporting the facts of this particular case to the competent authorities. In that
context, the efforts made by Rosendo Radilla Pacheco’s relatives and representatives to secure
justice through domestic channels are deemed reasonable.
22. In consideration of the foregoing, the Commission applies to this matter the exception of
“unwarranted delay in deciding” on those remedies, as provided for in Article 46(2)(c) of the
American Convention and, consequently, it relieves the petitioners of the need to comply with that
requirement.
2.
Timeliness of the petition
23. Article 46(2) of the American Convention provides that an unwarranted delay in rendering a
final ruling on domestic remedies shall preclude the requirement of exhausting domestic remedies
and of lodging the petition within six months following notification of the final judgment. Similarly,
Article 32(2) of the IACHR’s Rules of Procedure stipulates that:
In cases in which the exceptions to the prior exhaustion requirement are applicable, the
petition must be presented within what the Commission deems to be a reasonable period of
time. For this purpose, the Commission shall consider the date on which the alleged
violation of rights occurred and the circumstances of each case.
24. The alleged forced disappearance of Rosendo Radilla Pacheco began on August 25, 1974,
when he was arrested in the state of Guerrero. The instant petition was lodged with the IACHR on
November 15, 2001, after long years spent filing claims with various national agencies in order to
secure an investigation of Rosendo Radilla Pacheco’s whereabouts. The circumstances surrounding
this case, as described in the section of this report dealing with the exhaustion of domestic
remedies, indicate the fear and difficulties faced by the petitioners from the time of the incident
until the conditions changed enough for them to be able to lodge the complaint. That occurred in
1990, when the CNDH was created and “various families and organizations felt sure enough to lodge
15 IACHR, Report on the Situation of Human Rights in Mexico, September 24, 1998, OEA/Ser.L/V/II.100 Doc. 7 rev. 1.
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