must also complete the “study and initial processing” of the petition, so that it “fulfills all the
requirements set forth”, including, of course the first and foremost requirement, “that the
remedies under domestic law have been pursued and exhausted in accordance with generally
recognized principles of international law.” The Commission, therefore, acting through its
Executive Secretariat, must perform an initial review of whether the petition complies with
the Convention, cross-checking it with the Convention's established requirements that must
be met before the petition can be “lodged”.
It is reasonable to infer from all this that domestic remedies must have been exhausted before
the petition comes before the Commission, because otherwise it would be impossible to
understand the sense and the need for a “study and initial processing” of the petition by the
Executive Secretariat; it would be senseless to require the petitioner to complete the process
or to indicate the steps undertaken to exhaust domestic remedies, and there would be no
sense in setting a deadline for it to be lodged.
Finally, bearing in mind that the task of the Commission is to study the petition, require it to
be complete and process it, all this must clearly be done in accordance with the terms in
which the petition was “lodged”. It can be maintained in this line of thinking that, just as “it
is not the task of the Court or the Commission to identify ex officio the domestic remedies
that remain to be exhausted, and international bodies are not expected to rectify a lack of
precision in the State’s arguments”,25 similarly, they cannot be expected to rectify the petition
or give it a scope beyond what it says and what it is requesting. The Commission must limit
itself to what is being asked of it.
This thesis is further strengthened by the provisions concerning the situation in which it is
either unnecessary or impossible to exhaust these remedies beforehand. Article 32(2) of the
Rules of Procedure of the Commission states, “[i]n those cases in which the exceptions to the
requirement of prior exhaustion of domestic remedies are applicable, the petition shall be
presented within a reasonable period of time, as determined by the Commission. For this
purpose, the Commission shall consider the date on which the alleged violation of rights
occurred and the circumstances of each case. If this alternative applies, the Commission must
also consider the time when the alleged violation occurred, which obviously must have been
before the petition was lodged.
In summary, then, it is also the duty of the Commission, faced with the lodging of a petition,
to confirm that the requirement for prior exhaustion of domestic remedies has already been
met.
D. Response by the State
Article 30(2) of the Commission’s Rules of the Rules of Procedure says that the “Commission,
through its Executive Secretariat, shall [...] forward the relevant parts of the petition to the
State in question.”
25
Para. 49 of the judgment.
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