5
to the State, after a preliminary study of the admissibility requirements is carried out. That
is, if the petition is not "manifestly unfounded," the Commission decides to pursue the
matter and inform the State of that decision, which does not mean that the case is
admissible for the purposes of Articles 46 or 47 of the American Convention.
20.
The State, once the petition has been forwarded, must specify, if applicable, the
domestic remedies that have not yet been exhausted, and show that these remedies were
available and were adequate, appropriate and effective, 12 which has been reiterated in the
jurisprudence of the Inter-American Court. Once the petition has been forwarded to the
State, the adversarial proceedings begins, and it is at that stage where the Inter-American
Commission –always respecting the procedural fairness and adequate protection of the
parties— is able to assess the merits of the petition and, if applicable, the admissibility or
inadmissibility of the petition as provided in Articles 46 or 47 of the American Convention.
Otherwise, upon receiving the petition, that is, before processing it or beginning the initial
assessment of the petition, the Commission would be required to verify with complete
certainty whether in each situation the domestic remedies have been exhausted and assess
the laws of each State to determine whether there might be other possible remedies to be
exhausted and whether they are effective, which the Inter-American Court has consistently
held, is a responsibility of the State. 13 In this regard, the Inter-American Court has
established that:14
First, the Court has pointed out that the matter of the failure to exhaust remedies
is one of pure admissibility and that the State which alleges it must express
which domestic remedies should be exhausted, as well as prove the effectiveness
thereof. Second, for the objection of failure to exhaust the domestic remedies to
be held timely, it should be filed at the admissibility stage of the proceeding
before the Commission, that is, before any consideration of the merits of the
case; otherwise, the State is assumed to have waived constructively its right to
resort to it. Third, the respondent State may waive, either expressly or tacitly,
the right to raise an objection for failure to exhaust the domestic remedies. 15
(Underlining added)
21.
Indeed, it has been consistently held by the Inter-American Court that an objection to
the exercise of its jurisdiction based on the alleged failure to exhaust domestic remedies must
be filed at the appropriate procedural moment,16 that is, during the first stages of the
12
Cf. Case of Velásquez Rodríguez V. Honduras. Preliminary Objections. Judgment of June 26, 1987. Series
C No. 1, para. 91; and Case of Vera Vera et al. V. Ecuador. Preliminary Objection, Merits, Reparations and Costs.
Judgment of May 19, 2011. Series C no. 226, para. 13. Moreover, see para. 20 of the Judgment.
13
Cf. para. 16 of the Judgment. Moreover, see Case of Velásquez Rodríguez V. Honduras. Preliminary
Objections. Judgment of June 26, 1987. Series C No. 1, para. 88; and Case of Mémoli V. Argentina. Preliminary
Objections, Merits, Reparations and Costs. Judgment of August 22, 2013. Series C No 265, para. 47.
14
Cf. para. 16 of the Judgment. Moreover, see Case of Almonacid Arellano et al. V. Chile. Preliminary
Objections, Merits, Reparations and Costs. Judgment of September 26, 2006. Series C No. 154, para. 64.
15
Cf. Case of Ximenes-Lopes v. Brazil. Preliminary Objections, supra note 3, para. 5; Case of the
Moiwana Community v. Suriname, supra note 3, para. 49; and Case of the Serrano-Cruz Sisters v. El
Salvador. Preliminary Observations, supra note 2, para. 135.
16
Cf. Case Velásquez Rodríguez V. Honduras. Preliminary Objections. Judgment of June 26, 1987. Series C
No. 1, para. 88; and Case of Mémoli V. Argentina. Preliminary Objections, Merits, Reparations and Costs. Judgment
of August 22, 2013. Series C No. 265, para. 47.