3. In exceptional circumstances, and after having requested information from the
parties in accordance with the provisions of Article 30 of these Rules of Procedure,
the Commission may open a case but defer its treatment of admissibility until the
debate and decision on the merits. The case will be opened by means of a written
communication to both parties.” 28
On this point, it is appropriate to note that the rule alluded to does not stipulate that the
remedies of the domestic jurisdiction should necessarily have been exhausted to be able to
adopt a decision on admissibility, since such decision may be to not admit the petition
precisely because those remedies have not been exhausted.
It should also be noted that this rule does not establish that domestic remedies must be
exhausted at the time the decision on admissibility is adopted, even if they had not been
exhausted prior to the decision, but simply states that, “once it has considered the positions
of the parties, the Commission shall make a decision on the admissibility of the matter,”
nothing more. Thus, this rule does not refer specifically to the time at which the requirement
of prior exhaustion of domestic remedies must have been complied with, but rather to the
time at which the decision on the admissibility of the petition “lodged” must be adopted.
In conclusion, in order to decide whether or not to admit the petition, the Commission
carries out a second control of conventionality of the petition, comparing it with the
provisions of the Convention as regards the requirements that logically could and should
have been met only when this occurred, that is, when it was “lodged.”
C. Consequences in general
In support of the argument that the rule of prior exhaustion of domestic remedies must be
complied with before the petition is “lodged” with the Commission, it is worth reiterating
that, in the opposite case, that is, if the rule were to allow it to be done later, it is possible
that, in the event that one of the exceptions to this rule has not been invoked or has not
been decided upon and at least for a period of time (for example, between the time when
the petition is lodged and the time when the decision on its admissibility is adopted, which
in many situations could be considered extremely long) the same case could be dealt with
simultaneously by both the domestic jurisdiction and the international jurisdiction. This
would obviously make the statement in the second paragraph of the Preamble meaningless,
and even the rule of prior exhaustion of domestic remedies as a whole. Indeed, in this
situation, the inter-American jurisdiction would not reinforce or be complementary to the
domestic jurisdiction, but rather would substitute it or, at least, it could be used to bring
pressure to bear on the latter and, clearly, this is not what the Convention seeks.
Moreover, under this hypothesis, it might constitute an incentive, which could be considered
perverse, to lodge petitions before the Commission when said requirement has not been
met in the hope that it can be complied with before the Commission decides on their
admissibility. Evidently, this situation was not anticipated or sought by the Convention.
28
As contemplated in Article 36 of the current Rules of Procedure.
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