8
November 5, 2003,” that “[i]n addition, although the initial petition was received on
August 22, 2003, it was not until April 18, 2005, that the Commission forwarded the
pertinent parts of the alleged victim’s petition to the State,” that “[o]n July 18, 2005,
the State argued that the petition had been lodged prior to the final decision of the
High Court of Justice,” and that “[l]astly, the Admissibility Report was issued on March
9, 2007.”21
Nevertheless, it may be understood from the above that, since the Judgment does not
include what was expressly and directly indicated by the Commission, it would appear
that its position was accepted; this was that it is at the moment at which the
Commission decides on the admissibility of the pertinent petition or communication
lodged before it that the obligation of prior exhaustion of domestic remedies should be
complied with.
In this case, this interpretation would not be in keeping with either the words of the
above-mentioned Articles 46(1)(a) and 47(1)(a) of the Convention or their spirit.
Indeed, regarding the text of the norms, it should be indicated, first, that although it is
true that the Convention does not expressly and directly indicate that, at the time of
its presentation, the respective petition or communication must comply with the
requirement of prior exhaustion of domestic remedies, it is also true that it does not
indicate, either tacitly or indirectly, that it is sufficient that this requirement is complied
with when the Commission rules on its admissibility for the said petition or
communication to be admitted. Doubtless, if this had been the intention, it would have
been expressly stated in the Convention, but this did not happen.
Similarly, it should be recalled that it is undeniable that the Convention does not
include a time frame for the Commission to rule on whether or not the petitions or
communications lodged before it are admissible; and, consequently, the Convention
did not anticipate the situations arising from a delay in this ruling. However, it may be
supposed that the wording of the articles cited tacitly considered a certain simultaneity
or, at least, a relatively short lapse between the lodging of the petition or
communication and the decision on its admissibility.
Based on the foregoing, attention may also be drawn to the fact that the said
provisions expressly refer to “a petition or communication lodged;” in other words,
they refer to a procedural action carried out at a certain moment that reveals its
author’s intention. That is to say, it cannot be modified by the latter, unless the author
requests that it be considered that the action has not been taken. Second, it should
also be considered that, it is with regard to that action, the “petition or communication
lodged” that the Commission’s decision on whether or not it is admissible should be
made. That is, the Commission must refer to this exactly as it was lodged or
completed; the latter at the request of the Commission itself. From all the foregoing, it
can be inferred that the said petition or communication is only admissible if, at the
time it is lodged or has been completed, the domestic remedies relating to the
presumed violation of the human rights that it alleged have been exhausted.
Furthermore, this is revealed by the provisions of the Commission’s Rules of Procedure
which were adopted by the Commission itself and that, therefore, reflect how it has
interpreted the pertinent norms of the Convention.
21
Para. 17.