bears the obligation to comply with it. The party obliged to do so, then, can only be the
alleged victim, his representative or the petitioner, but not the State.
3. Timeliness of the petition
As a second comment, it is appropriate to point out that the rule of prior exhaustion of
domestic remedies logically constitutes a requirement that must be complied with prior to
submitting the petition to the Commission and that the latter must be informed of such
compliance or of the impossibility of doing so.
Indeed, it should be borne in mind that Articles 46 and 47 refer to the “petition or
communication lodged,” i.e., to an instantaneous act, which occurs at a given moment and
is not prolonged over time. The same can be said with respect to Article 48(1)(a) of the
Convention, which establishes that:
“When the Commission receives a petition or communication alleging violation of any
of the rights protected by this Convention, it shall proceed as follows:
a) If it considers the petition or communication admissible, it shall request
information from the government of the State indicated as being responsible for
the alleged violations and shall furnish that government a transcript of the
pertinent portions of the petition or communication. This information shall be
submitted within a reasonable period to be determined by the Commission in
accordance with the circumstances of each case. [...].”
In other words, what the Convention states is that the “petition or communication lodged,”
whose “pertinent portions” are transmitted to the State concerned, must indicate
compliance with the requirement of prior exhaustion of domestic remedies - or the
impossibility of doing so due to any of the circumstances set forth in Article 46(2) - which
means that at the time of lodging said petition, this must have already taken place.
This interpretation is reinforced by the provisions of Articles 46(1)(b) and 47(b), which
state that the petition must have been:
“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.”
Certainly, the final judgment is understood to mean the one handed down after the last
appeal has been filed, without there being any other appeals pending. That is to say, the
time limit for filing the application is counted from the moment of notification of the final
decision issued by the national authorities or courts on the remedies that have been filed
before them and which are, therefore, those that may have generated the international
responsibility of the State, which obviously implies that these must have been exhausted
at the time the petition was “lodged.”
This idea is further reinforced by the wording of Article 46(1)(a) of the Convention insofar
as it refers to the fact that “the remedies under domestic law have been pursued and
exhausted, i.e., it alludes to something that has already occurred prior to presentation of
the corresponding petition.
6
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