stipulates that the petition must contain information on “[a]ny steps taken to exhaust
domestic remedies, or the impossibility of doing so.” It should be noted that, by
referring to the said Rules of Procedure, attention is being drawn to how the
Commission itself, by approving this legal instrument, has interpreted the provisions of
the Convention and, in particular in this case, its Article 46(1)(a).
Clearly for the same reason, Article 31(3) of the Commission’s Rules of Procedure refers
to the situation in which “the petitioner contends that he or she is unable to prove
compliance with the requirement indicated in this article.” In other words, this provision
indicates that the specific exceptions to the rule of prior exhaustion of domestic
remedies are established in favor of the presumed victim or the petitioner.
Consequently, it is the petitioner and no one else, not even the Commission, who may
argue or assert some of the exceptions to the said rule and, evidently, this can only be
done when the petition is drawn up.
The second comment regarding the petition relates to the fact that Article 46(1) of the
Convention refers to it as “lodged,” which means that it should be considered just as it
was submitted and if, at that time, it meets the requirements set out in this provision, it
should be admitted. Accordingly, it is at that moment – the moment of its submission –
when it should have complied with the requirement concerning the prior exhaustion of
domestic remedies established in Article 46(1)(a) of the Convention and, only if this is
so, the petition “lodged” may be “admitted” by the Commission.
Similarly, Article 46(1)(b) of the Convention is based on the same concept since it
establishes that, for the petition to be admitted, it 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.” Undoubtedly, it should be understood that this should be
the judgment handed down on the last remedy that was filed, with no other remedies that
may be filed. In other words, the time frame indicated for lodging the petition is calculated
from the date of notification of the final decision of the domestic authorities or courts on
the remedies that have been filed before them and, consequently, these may have
resulted in the State’s international responsibility, which evidently implies that they
must have been exhausted when the petition was “lodged.”
Meanwhile, Article 26(1) of the Commission’s Rules of Procedure stipulates that the
initial processing is carried out of the petitions “that fulfill all the requirements set
forth,” and such petitions must indicate, as established by the above-mentioned Article
28(h), the “steps taken to exhaust domestic remedies, or the impossibility of doing so,”
and if they do not meet this requirement, “the Commission[, as established in Articles
26(2) and 29(1)(b) of these Rules of Procedure,] may request the petitioner or his or
her representative to fulfill them.” Moreover, according to the said Article 46(1)(b) of
the Convention, the Commission should consider, only those petitions “lodged within a
period of six months from the date” of notification of the decision that exhausted the
domestic remedies.
Based on all the above, it can be concluded that, ultimately, compliance with the said
rule of prior exhaustion of domestic remedies constitutes a requirement that the
petition must meet in order to be “lodged.”
sessions held from October 6 to 24, 2003, at its 126th regular period of sessions held from October 16 to 27,
2006, and at its 132nd regular period of sessions held from July 17 to 25, 2008.
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