that the Commission has previously established that the disciplinary jurisdiction does not constitute a
sufficient venue for prosecuting, punishing, and making reparation for the consequences of human rights
7
violations.
31.
Regarding the administrative-contentious remedy exhausted before the AdministrativeContentious Court of Arauca whereby the State was declared responsible for violations committed while
on duty, it should be noted that this represents a mechanism that sought to monitor the administrative
8
activity of the State and only allowed for obtaining compensation for damages and injuries caused.
32.
In this respect, the Commission has previously maintained that decisions handed down in
disciplinary and administrative-contentious systems are not appropriate remedies for purposes of the prior
exhaustion of domestic remedies. In the instant case, the petitioners’ claims relate to the investigation,
prosecution, and criminal punishment of those responsible, issues that do not fall within the purview of
those jurisdictions. Consequently, in a case like this one these remedies need not be exhausted before
9
having recourse to the inter-American system.
33.
The invocation of the exceptions to the prior exhaustion of domestic remedies rule established in
Article 46.2 of the Convention is closely tied to the determination of possible violations of certain rights
enshrined therein, such as judicial guarantees and judicial protection. However, Article 46.2, based on its
nature and purpose, is a standard with autonomous content vis-à-vis the substantive standards of the
American Convention. As a result, the determination as to whether the exceptions to the rule of the
exhaustion of domestic remedies are applicable to the case in question must be made prior to and
separate from the analysis of the merits of the case, in that it depends on a standard of assessment
different from that used to determine the possible violation of Articles 8 and 25 of the American
Convention. It should be made clear that the causes and effects that prevented the exhaustion of
domestic remedies will be analyzed in the report adopted by the Commission regarding the merits of the
dispute in order to determine whether they constitute violations of the American Convention.
2.
Deadline for submitting a petition to the Commission
34.
The American Convention establishes that in order for a petition to be admitted by the
Commission it must have been submitted within a period of six months from the date when the alleged
injured party was notified of the final decision. In the complaint under review, the IACHR has established
the application of the exceptions to the exhaustion of domestic remedies in accordance with Article
46.2.c) of the American Convention. In this regard, Article 32 of the Rules of Procedure of the
Commission establishes that in cases where the exceptions to the prior exhaustion of domestic remedies
are applicable, the petition must be submitted within a reasonable period of time in the judgment of the
Commission. To this end, the Commission must consider the date on which the alleged violation of rights
occurred and the circumstances in each case.
35.
In the instant case, the petition was received on March 2, 1999, the alleged facts covered in the
complaint began on May 27, 1997 and the effects thereof in terms of the alleged failure to administer
justice continue to the present day. Thus, in view of the context and considerations of this case, the
Commission deems that the petition was submitted within a reasonable period of time and that the
admissibility requirement with respect to the deadline for submission should be considered to have been
met.
3.
Duplication of proceedings and res judicata
7
IACHR. Report No. 72/09 Herson Javier Caro (Javier Apache) and family, August 5, 2009, para. 28.
8
IACHR. Report No. 72/09 Herson Javier Caro (Javier Apache) and family, August 5, 2009, para. 28.
9
IACHR. Report No. 74/07 José Antonio Romero Cruz, Rolando Ordoñez Álvarez and Norberto Hernández, October 15, 2007,
para. 34, and Report No. 72/09 Herson Javier Caro (Javier Apache) and family, August 5, 2009, para. 28.
6