B. The petition
The first observation that needs to be made about the petition that initiates a procedure
before the Commission and that may end up in the Court is that compliance with the rule on
prior exhaustion of domestic remedies is equally and fundamentally an obligation of the victim
or the petitioner. This is the party that must comply with the requirement for prior exhaustion
of domestic remedies, and who, in order to argue the violation before the inter-American
jurisdiction,22 must have done so already before the relevant national judicial bodies. If this
does not occur, it would be an impediment to swift, timely achievement of the abovementioned useful effect.
This is why Article 28(8) of the Rules of Procedure of the Commission, both the current
edition23 and the version in force at the time the petition was submitted, 24 says that the
petition must contain information on “...any steps taken to exhaust domestic remedies, or
the impossibility of doing so as provided in Article 31 of these Rules of Procedure”. It is worth
noting that any reference to these Rules of Procedure points to the understanding held by the
Commission itself when it approved this legal instrument and its interpretation of the
provisions of the Convention, and more significantly for the purpose at hand, Article 46(1)(a)
thereof.
It is clearly for the same reason that Article 31(3) of the Rules of Procedure of the Commission
refers to a situation in which “the petitioner contends that he or she is unable to prove
compliance with the requirement...” What this provision says is that the strictly delimited
exceptions to the rule on prior exhaustion of domestic remedies are established in favor of
the victim or petitioner. Consequently, it is the petitioner and only the petitioner who can
allege or assert any exceptions to the rule, not the Commission, and clearly, therefore, this
can be done only at the time the petition is lodged.
The second comment about the petition points to the words of this same Article 46(1) of the
Convention, which describes it has having been “lodged”, certainly implying that the petition
should be considered as is, and if in this state it meets the requirements set forth in the
article, it should be “admitted”. The requirement for prior exhaustion of domestic remedies
called for in Article 46(1)(a) of the Convention needs to have been met by the petition at the
time it is first submitted, and only if it has been, may the petition be “admitted” by the
Commission.
22
Art. 44 of the Convention: “Any person or group of persons, or any nongovernmental entity legally recognized in
one or more member states of the Organization, may lodge petitions with the Commission containing denunciations
or complaints of violation of this Convention by a State Party.”
Art. 61(1) of the Convention: “Only the States Parties and the Commission shall have the right to submit a case to
the Court.”
Approved by the Commission at its 137th Regular Period of Sessions, held from October 28 to November 13, 2009,
and modified on September 2nd, 2011 and during the 147th Regular Period of Sessions, held from 8 to 22 March
2013, for entry into force on August 1st, 2013.
23
Approved by the Commission at its 109th regular period of sessions, held from December 4 to 8, 2000, and
modified at its 116th regular period of sessions, held from October 7 to 25, 2002.
24
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