the one it expresses and requires. Thus, the Commission must abide by what is
requested of it.
This thesis is supported by the provisions established for the situation in which it is not
necessary, or it is impossible, to exhaust such remedies previously. In this regard,
Article 32(2) of the Commission’s Rules of Procedure indicate that “[i]n those cases in
which the exceptions to the requirement of prior exhaustion of domestic remedies are
applicable, the petition shall be presented within a reasonable period of time, as
determined by the Commission. For this purpose, the Commission shall consider the
date on which the alleged violation of rights occurred and the circumstances of each
case.” In other words, under that alternative, the Commission must also consider the
date on which the alleged violation occurred, which obviously must have happened prior
to the submission of the petition.
Consequently, the Commission’s function when a petition is lodged confirms that the
requirement of prior exhaustion of domestic remedies must be met before it acts.
D. Response or observations of the State
Article 30(1) and (2) of the Commission’s Rules of Procedure indicate that “[t]he
Commission, through its Executive Secretariat, […] shall forward the relevant parts of
the petition to the State in question.”
Evidently, the relevant parts forwarded to the State must include, as indicated in Article
28(h) of these Rules of Procedure, information on “[a]ny steps taken to exhaust
domestic remedies, or the impossibility of doing so as provided in Article 31 of these
Rules of Procedure.” And Article 30(3) cited above adds that “[t]he State shall submit
its response within two months from the date the request is transmitted”; a response
that, evidently, must contain the preliminary objection of absence of prior exhaustion of
domestic remedies by the presumed victim or the petitioner, if the State wishes to file
this objection.
Moreover, similarly, Article 31(3) of the Commission’s Rules of Procedure stipulates that
“[w]hen the petitioner contends that he or she is unable to prove compliance with the
requirement indicated in this article, it shall be up to the State concerned to
demonstrate to the Commission that the remedies under domestic law have not been
previously exhausted, unless that is clearly evident from the record.”
In other words, if the petitioner alleges in his petition that he is unable to prove that he
has previously exhausted the domestic remedies, the State may contest this allegation,
in which case it must prove that they have not been exhausted, provided that this is not
evident from the case file. It is in relation to this possibility that the Court’s assertion
that, “[w]hen arguing the failure to exhaust domestic remedies, the State must specify
the domestic remedies that remain to be exhausted, and prove that these remedies
were available, adequate, appropriate and effective,”26 should be understood.
Nevertheless, it should be recalled that, logically, also in the case – which is not
expressly considered in the Commission’s Rules of Procedure – that the petitioner
indicates in his petition that he has previously exhausted the domestic remedies (that
26
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.
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