corresponds to the person lodging the petition before the Commission; that is, “[a]ny person
or group of persons, or any non-governmental entity legally recognized in one or more member
states of the Organization,” that may subsequently intervene in the corresponding proceedings.48
30.
Indeed, it can be argued, based on the said Article 46, that, for the pertinent petition
or communication to be admitted, the remedies of the domestic jurisdiction must have
previously been exhausted and, evidently, it is the alleged victim, his or her representative,
or the petitioner who must exhaust those remedies. It is not logical or coherent to make the
admissibility of a petition or communication based on a violation of human rights depend on
the State against which it is addressed having exhausted the domestic remedies against its
own actions – consisting in having violated human rights – because under this absurd
hypothesis, it would never be possible to have recourse to the international instance.
31.
The foregoing appears evident and, if it is mentioned, it is to underscore – without
leaving any room for doubt – that the reference that the Court’s case law has made to this
rule being “conceived in the interests of the State” does not mean that the State is the holder
of the obligation to prove that it has been complied with. Therefore, the one obliged to do so
can only be the presumed victim, his or her representative, or the petitioner and it is
compliance with that obligation that allows the State to answer the petition lodged before the
Commission and, possibly, to present the objection of failure to exhaust domestic remedies.
E. Correct moment to lodge the petition
32.
It should also be repeated that the rule of the prior exhaustion of domestic remedies
logically constitutes a requirement that should be met before the petition is lodged before the
Commission and that the latter record that such remedies have been exhausted or that it was
impossible to do so.
33.
Indeed, it should be recalled that the Articles 46(1)(a) 49 and 47(b) 50 of the Convention
transcribed above refer to the “petition or communication lodged”; that is an instantaneous act
that occurs at a determined moment and that does not extend over time. The same can be said
of Article 48(1)(a) of the Convention, which establishes that:
“When the Commission receives a petition or communication alleging violation of any of the rights
protected by this Convention, it shall proceed as follows: (a) If it considers the petition or
communication admissible, it shall request information from the government of the State indicated
as being responsible for the alleged violations and shall furnish that government a transcript of
the pertinent portions of the petition or communication. This information shall be submitted within
a reasonable period to be determined by the Commission in accordance with the circumstances of
each case.”
Declarations shall be deposited with the General Secretariat of the Organization of American States, which shall transmit
copies thereof to the member states of that Organization
The Court’s 1996 Rules of Procedure indicated that: “[a]t the reparations stage, the representatives of the victims
or of their next of kin may independently submit their own arguments and evidence” (Art. 23). The Rules of Procedure
adopted in 2000, 2003 and 2009 established that: “[w]hen the application has been admitted, the alleged victims,
their next of kin or their duly accredited representatives may submit their requests, arguments and evidence,
autonomously, throughout the proceeding” (Art. 23(1)). The current Rules of Procedure, adopted by the Court at its
eighty-fifth regular session held from November 16 to 28, 2009, establish that: “[o]nce notice of the brief submitting
a case before the Court has been served, in accordance with Article 39 of the Rules of Procedure, the alleged victims
or their representatives may submit their brief containing pleadings, motions, and evidence autonomously and shall
continue to act autonomously throughout the proceedings” (Art. 25(1)).
48
49
Supra, para. 21.
50
Supra, para. 22.
10