should address the petition just as it was “lodged”. They do not create a new or amended
petition, unless, as would be expected, the original petition needs to be withdrawn.
It is thus unquestionable that the State’s response, logically and necessarily, should address
a petition that has been “lodged” before the Commission, and it is at this time and not later,
that the exhaustion of domestic remedies should be litigated.
For this very reason, this is the time when domestic remedies need to have been exhausted,
or explanations need to be given as to the impossibility of doing so. To hold that these
remedies could be exhausted after the petition has been “lodged” and, consequently, the
State has been notified, would undermine the essential procedural balance and would leave
the State defenseless, unable to lodge the relevant preliminary objection within the
established limits of time and form.
This is the framework in which to understand what the Court “has consistently maintained[,]
that an objection to the exercise of its jurisdiction based on the alleged failure to exhaust
domestic remedies should be lodged at the correct stage of the proceedings, that is, during
the admissibility stage before the Commission.” 27
E. Admissibility of the petition
The above premises become equally evident in view of the provision of Article 31(1) of the
Rules of Procedure, that says, “to decide on the admissibility of a matter, the Commission
shall verify whether the remedies of the domestic legal system have been pursued and
exhausted in accordance with the generally recognized principles of international law.”
This rule requires the Commission to “verify”, that is, to confirm or substantiate28 whether
the domestic remedies have been pursued and exhausted, and thus “decide” on admissibility.
However, it does not require these remedies to have been exhausted in order to adopt an
admissibility decision. This makes sense, because the decision could well be to deny the
petition because the remedies have not been exhausted. This means that the Commission, to
make a decision on admissibility of the petition, must verify whether the rule of prior
exhaustion of domestic remedies has been met, and if not, the proper decision would be to
hold the petition inadmissible. The necessary requirement if the Commission is to rule on the
admissibility of a petition is to verify whether the petition meets the rule on prior exhaustion
of domestic remedies, and not whether it has in fact been met.
It should also be said that while it makes sense for the preliminary objection on failure to
exhaust domestic remedies to be lodged during the admissibility stage of the petition—which
runs from the time the petition is received and processed by the Commission, through the
Executive Secretariat, until the time the Commission rules on its admissibility—this does not
mean that it should be at this very last minute, at the end of the procedure, that the
requirement should be fulfilled. All it means is that this is the time to make the ruling, or
27
Para. 49 of the judgment.
28
Merriam-Webster Dictionary, www.Merriam-Webster.com, Merriam-Webster, Incorporated, 2021.
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