5 II. COMPLIANCE WITH THE OBLIGATION CONCERNING EXHAUSTION OF DOMESTIC REMEDIES IN THIS CASE THE PRIOR Now the question arises of whether, in this case, it was appropriate to comply with the obligation to exhaust domestic remedies previously and, if the answer is affirmative, when this should have taken place. Indeed, it is necessary to distinguish between the preliminary objection raised by the State concerning the lodging of the petition before the Commission prior to the delivery of the guilty verdict,15 and the one relating to the failure to exhaust remedies relating to the restriction of the right to leave the country. A. The failure to exhaust domestic remedies based on submission of the petition to the Commission prior to the delivery of the guilty verdict 1. Pertinence of the obligation of prior exhaustion of domestic remedies Regarding the rule of the prior exhaustion of domestic remedies, the Judgment asserts “… that the petitioner argued the presumed violation of the right to appeal the judgment convicting him and the principle of legality before the High Court of Justice, which had been decided unfavorably in an interlocutory decision of June 12, 2003, before the respective complaint was submitted to the Commission,” so that “consequently, the Court finds that, in this case, owing to the inexistence of an appeal against the possible guilty verdict, the delivery of this verdict was not an essential requirement for the submission of the case to the Commission.”16 In this regard, it must be recalled that, by affirming the above, it is being accepted that the mere possibility that the judgment of the State’s High Court of Justice, which could not be appealed, would convict the petitioner, was sufficient reason for not requiring compliance with the requirement of prior exhaustion of domestic remedies. The grounds for this determination are, therefore, a decision that had not been taken when the petition was lodged before the Commission. Moreover, there was no certainty that this decision – the said judgment with a guilty verdict – would be taken. In addition, in this regard, the considerations in the Judgment were based only on the inexistence of a remedy of appeal against this possible judgment, in the circumstances that there is no record in the case documentation of whether other remedies, such as the remedy of reconsideration, were admissible before the same court. But, in addition to the foregoing, it should be considered that the said inexistence of the remedy of appeal, which was the grounds for what was decided in the Judgment in this regard, was not asserted or alleged in the initial petition lodged before the Commission, or even subsequently in the instant case. Thus neither the Commission nor the petitioner indicated during the proceedings what was decided in the Judgment and transcribed above. It should also be emphasized that the Judgment’s ruling on the preliminary objection concerning the prior exhaustion of domestic remedies was not made with regard to the State’s final decision, which therefore could not be amended or changed and which, consequently, could give rise to international responsibility, but rather with regard to a prior decision that was not final – the said interlocutory decision. Hence, the preliminary objection was rejected based on a decision of the State that, by its very nature, did not have the effects of res judicata and did not refer to the merits of the matter examined in the corresponding proceeding. 15 Paras. 10 and 17. 16 Para. 18.