Article 46.1.a of the American Convention provides that for a petition submitted to the Inter-American Commission to be admissible under Article 44 of the Convention, the petitioner must first have pursued and exhausted domestic remedies, in keeping with generally recognized principles of international law. This requirement is intended to allow national authorities to consider an alleged violation of a protected right and, when applicable, to give them the opportunity to correct it before it is heard and decided by an international body.
Article 46.2 establishes that this requirement does not apply when: a) the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated; b) the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or c) there has been unwarranted delay in rendering a final judgment under the aforementioned remedies. Both the Commission and the Inter-American Court have indicated that only those remedies that are adequate to redress the alleged violations must be exhausted.
The Commission finds that the facts alleged by the petitioner constitute criminal offenses under the domestic law that the government must investigate and prosecute on its own initiative,3 which in such cases is the suitable way to establish the facts, prosecute the perpetrators, and impose the appropriate criminal penalties, as well as to facilitate other means of adequate reparation. That is to say, the events relating to the alleged disappearance of José Alfredo Jiménez Mota are criminal acts under the domestic law that must be investigated and prosecuted by the State on its own initiative.
In this case, the available information leads to the determination that, although a criminal investigation was opened (PGR/SIEDO/UEIS/177/2005) following the disappearance of journalist José Alfredo Jiménez Mota, the domestic investigations are still at the preliminary stage 10 years after the events. The Commission observes that the effectiveness of the domestic remedies is part of the dispute between the parties. For purposes of admissibility, the Commission finds that the fact that the case has been at the investigative phase for 10 years allows for the application of the exception contained Article 46(2) (c) of the Convention, on the grounds of unwarranted delay. In any case, the Commission must examine the effectiveness of the remedies in relation to the rights to protection and the right to a fair trial at the merits phase.