9
Reference has already been made to these Rules of Procedure, 22 indicating that they
leave no doubt that the person obliged to previously exhaust domestic remedies is the
person who lodges the pertinent petition or communication before the Commission,
and that it is also this person, therefore, who must prove that this requirement has
been met at that time, or when the Commission requests that the petition or
communication be completed during its initial processing.
However, these Rules of Procedure also indicate that it is the petitioner who may allege
the impossibility of proving compliance with the requirement of prior exhaustion of
domestic remedies,23 which can only be done in the respective petition, or with the
information completing it.
Furthermore, attention should also be drawn to the fact that, according to the said
Rules of Procedure, only “the petitions” that meet the pertinent requirements will be
processed, including the one relating to the prior exhaustion of domestic remedies,
which should obviously have occurred before the petitions were lodged or when they
were completed at the request of the Executive Secretariat.24
Lastly, it appears undeniable that, as established by the Commission’s Rules of
Procedure,25 when a petition is lodged before it, the exact date on which the domestic
remedies have been exhausted is necessarily known, or should be known, and that is
the day on which the alleged victim has been notified of the decision that exhausted
those remedies, or that is not necessary to exhaust them, all of which must be
indicated in the said petition.
Regarding the spirit of the said provisions of the Convention, it should be reiterated
that if it were not compulsory to have exhausted the domestic remedies before lodging
the pertinent petition, it would be permissible that, at least for a certain time, that is,
between the moment at which the corresponding petition or communication was
lodged and the moment at which the Commission issued the decision on its
admissibility (a lapse that in many situations may be considered overlong), the same
case could be processed simultaneously by the domestic jurisdiction and by the
international jurisdiction, which would evidently make the provisions of the second
paragraph of the Preamble, and even the rule of prior exhaustion of domestic
remedies, meaningless. In other words, the inter-American jurisdiction would not be
subsidiary and complementary to the domestic jurisdiction, but rather would substitute
it or, at the very least, could be used as an element to exert pressure on the latter.
22
Arts. 28(8) and 29(3) of the Commission’s Rules of Procedure, transcribed above.
23
Art. 31(3) of the Commission’s Rules of Procedure: “When the petitioner contends that he or she is
unable to prove compliance with the requirement indicated in this article, it shall be up to the State
concerned to demonstrate to the Commission that the remedies under domestic law have not been
previously exhausted, unless that is clearly evident from the record.”
24
Art. 30(1) of the Commission’s Rules of Procedure: “The Commission, through its Executive
Secretariat, shall process the petitions that meet the requirements set forth in Article 28 of these Rules of
Procedure.”
Art. 32 of the Commission’s Rules of Procedure: “1. The Commission shall consider those petitions
that are lodged within a period of six-months following the date on which the alleged victim has been
notified of the decision that exhausted the domestic remedies. 2. In 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.”
25