is, he has met the requirements of Article 46(1)(a) of the Convention), the State may
file the objection that this has not occurred.
Thus, it is clear that compliance with the rule of prior exhaustion of domestic remedies
or the impossibility of complying with it must be indicated in the petition, because,
otherwise, the State could not respond to this. In other words, it is only if the petition
indicates that this rule has been complied with or that it is impossible to do so, that the
State may argue that it has not been complied with and, in this case, it must prove the
availability, adequacy, appropriateness and effectiveness of the domestic remedies that
were not exhausted, all of which shows, once again, that this requirement must have
been met previously; that is, before drawing up the petition the relevant parts of which
are forwarded to the State precisely so that it may respond to them.
Furthermore, Article 30(5) and (6) of the Commission’s Rules of Procedure point in the
same direction. Indeed, they establish that “[p]rior to deciding upon the admissibility of
the petition, the Commission may invite the parties to submit additional observations,
either in writing or in a hearing, as provided for in Chapter VI of the […] Rules of
Procedure,” which leaves no margin of doubt that the said “additional observations”
must relate to the petition, as it was “lodged” and not constitute a new petition or
modify the original one, unless, as is logical, this entails its withdrawal.
Consequently, it is undeniable that this response by the State logically and necessarily
must relate to the petition that was “lodged” before the Commission, and that it is at
that moment, and not afterwards, that the legal proceedings, or the adversarial
proceedings, as regards the exhaustion of domestic remedies are instituted.
And, for the same reason, it is at that moment that the domestic remedies must have
been exhausted or that the petitioner indicates the impossibility of exhausting them. To
affirm that those remedies could be exhausted after the petition has been “lodged” and,
consequently, notified to the State, would affect the essential procedural balance and
would leave the State defenseless, because it could not file the pertinent preliminary
objection in time and in due form.
It is in this context that the criterion “consistently affirmed [by the Court that] an
objection to the jurisdiction of the Court based on the supposed failure to exhaust
domestic remedies must be filed at the appropriate procedural opportunity; that is,
during the admissibility stage of the proceedings before the Commission” 27should be
understood.
E. Admissibility of the petition
The preceding consideration is also evident from Article 31(1) of the Commission’s
Rules of Procedure, which establishes that “[i]n order to decide on the admissibility of a
matter, the Commission shall verify whether the remedies of the domestic legal system
have been pursued and exhausted in accordance with the generally recognized
principles of international law.”
This provision requires the Commission to “verify,” that is, to confirm [Note: verificarcomprobar28 in the Spanish text], the filing and exhaustion of the domestic remedies, in
27
Case of Cruz Sánchez et al. v. Peru. Preliminary objections, merits, reparations and costs. Judgment of
April 17, 2015. Series C No. 292, para. 49.
28
Diccionario de la Lengua Española, Real Academia Española, 23rd edition, October 2014.
10