This writer, as he did in an earlier case, has voted against all the other consideranda and operative paragraphs of the judgment based on the position elucidated herein, that the ruling on the merits of the case was out of order.7 The reasons why he does not agree with the decision on the State’s lodging of the preliminary objection for failure to exhaust domestic remedies is explained below with reference to the applicable provision of the Convention, the facts of the case that are relevant to that provision, and finally, to the judgment’s discussion of the preliminary objection. I. THE CONVENTION’S PROVISION ON THE RULE OF PRIOR EXHAUSTION OF DOMESTIC REMEDIES The first part of this brief will offer an overview on the rule under discussion, followed by comments on the procedure that should be followed regarding the petition, its examination and initial processing by the Commission, the State’s response thereto, the admissibility of the case, and the judgment to be made by the Court. A. General Comments Article 46 of the Convention establishes the rule of prior exhaustion of domestic remedies in the following terms: 1. Admission by the Commission of a petition or communication lodged in accordance with Articles 44 or 45 shall be subject to the following requirements: a. that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law; b. that the petition or communication is lodged within a period of six months from the date on which the party alleging violation of his rights was notified of the final judgment; c. that the subject of the petition or communication is not pending in another international proceeding for settlement; and d. that, in the case of Article 44, the petition contains the name, nationality, profession, domicile, and signature of the person or persons or of the legal representative of the entity lodging the petition. 2. The provisions of paragraphs 1.a and 1.b of this article shall not be applicable 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; Separate dissenting opinion by Judge Eduardo Vio Grossi, Case of Díaz Peña v. Venezuela, judgment of June 26, 2012 (preliminary objection, merits, reparations and costs). 7 2