order to “decide” on admissibility. And, this is logical, because that decision could be
not to admit the petition because such remedies have not been exhausted. This means
that, in order to take a decision on the admissibility of the petition, the Commission
must verify whether the rule of prior exhaustion of domestic remedies has been
complied with and, if not, the corresponding decision would be to declare the petition
inadmissible. The essential requisite that enables the Commission to decide on the
admissibility of the petition is, thus, the verification it must make that the petition has
complied with the rule of prior exhaustion of domestic remedies, and not merely that
this rule has been complied with.
In addition, it should be noted that, although it is logical that the preliminary objection
of prior failure to exhaust domestic remedies should be filed during the procedure on
the admissibility of the petition – which extends from the date the petition is received
and processed by the Commission, through its Executive Secretariat, until the moment
at which the Commission rules on its admissibility – this does not mean that it should
be at this latter moment (that is, at the end of this procedure) when the said
requirement should have been met. It only means that, at that moment, the
Commission must rule on or rather “verify”29 whether it was met when the petition was
lodged.
This is evident if it is considered that Article 36(1) of the Commission’s Rules of
Procedure establishes that “[o]nce it has considered the positions of the parties, the
Commission shall make a decision on the admissibility of the matter.”
Hence, it is indisputable that the moment at which the Commission rules on the
admissibility of the petition is distinct from the moment when it is lodged or completed.
This is clear when it is recalled that the Commission’s Rules of Procedure establish an
“initial processing”30 of the petition, that the petition must be “register[ed],”31 and that
the “relevant parts”32 must be forwarded to the State. It is only after the State has
submitted its observations that the Commission determines the admissibility of the
petition and, to this end, “shall verify,”33 that is, confirm, that the corresponding
requirements have been met – including those relating to the prior exhaustion of
domestic remedies – and, consequently, “shall decide” on admissibility or
inadmissibility.
In short, the Commission’s Rules of Procedure do not establish that it is when the
Commission decides on the admissibility of the petition that the domestic remedies
should have been exhausted. Rather, to the contrary, they indicate that it is when the
Commission “shall verify” whether such remedies were filed and exhausted in a timely
manner or whether this was unnecessary and, on this basis, “shall decide” – in other
words, make a second control of conventionality of the petition, checking it against the
provisions of the Convention as regards the requirements that should have been met –
and, thus, it may either be admitted or rejected.
29
Article 31(1) of the Commission’s Rules of Procedure.
30
Article 29 of the Commission’s Rules of Procedure.
31
Idem.
32
Article 30(2) of the Commission’s Rules of Procedure.
33
Article 31(1) of the Commission’s Rules of Procedure.
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