1.
Exhaustion of domestic remedies
36.
Article 46(1)(a) of the American Convention states that in
order for a complaint presented to the Inter-American Commission to be
admissible under Article 44 of the Convention, the remedies under
domestic law must have been pursued and exhausted in accordance
with generally recognized principles of international law. The purpose of
this requirement is to allow the national authorities to become aware of
the alleged violation of a protected right and, if appropriate, have the
opportunity to rectify it before the matter is brought to an international
body.
37.
As is inferred from the principles of international law
reflected in the precedents established by the Commission and the
Inter-American Court, the accused State may either expressly or tacitly
renounce invocation of this rule.5 Secondly, in order for an objection
based on non-exhaustion of domestic remedies to be timely, it must be
raised during the early phases of processing before the Commission;
otherwise it is assumed that the State has tacitly renounced use of such
an objection.6 Thirdly, according to the applicable burden of proof, a
State alleging non-exhaustion must indicate which domestic remedies
need to be exhausted and provide evidence of their effectiveness. 7
5 IACHR, Report Nº 69/05, petition 960/03, Admissibility, Iván Eladio Torres,
Argentina, October 13, 2005, para. 42; I/A Court H.R., Ximenes Lopes Case.
Preliminary Objection. Judgment of November 30, 2005. Series C No. 139,
para. 5; I/A Court H.R., Case of the Moiwana Community. Judgment of June
15, 2005. Series C No. 124, para. 49; and I/A Court H.R., Case of the Serrano
Cruz Sisters. Preliminary Objections. Judgment of November 23, 2004. Series
C No. 118, para. 135.
6 I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community.
Preliminary Objections. Judgment of February 1, 2000. Series C No. 66, para.
53; Castillo Petruzzi et al. Case. Preliminary Objections. Judgment of
September 4, 1998. Series C No. 41, para. 56; and I/A Court H.R., Loayza
Tamayo Case. Preliminary Objections. Judgment of January 31, 1996. Series C
No. 25, para. 40. The Commission and the Court have established that “the
initial stages of the proceedings” should be understood to be “the stage of
admissibility of the case before the Commission, in other words, before any
consideration of the merits […].” See, e.g., IACHR Report Nº 71/05, petition
543/04, Admissibility, Ever de Jesús Montero Mindiola, Colombia, October 13,
2005, which cites I/A Court H.R., Herrera Ulloa Case. Judgment of July 2,
2004. Series C No. 107, para. 81.
7 IACHR, Report Nº 32/05, petition 642/03, Admissibility, Luís Rolando Cuscul
Pivaral and others affected by HIV/AIDS, Guatemala, March 7, 2005, paras.
33-35; I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community.
Preliminary Objections, supra note 3, para. 53; Durand and Ugarte Case.