12
Article 31(1)(c) of the Commission’s Rules of Procedure indicate that “if Commission (through
its Executive Secretariat) accepts, in principle, the admissibility of the petition, it shall request
information from the government of the State concerned, transcribing the relevant parts of the
petition,” which must undoubtedly include, in accordance with Article 29(d) of the Rules of
Procedure, “information on any steps taken to exhaust domestic remedies, or the impossibility
of doing so.”
Article 31(5) of the Commission’s Rules also provides that “(t)he information requested must be
provided as soon as possible, within 120 days from the date the request is sent,” a response which,
by the way, must contain, if it is to be lodged, the preliminary objection for failure to exhaust
domestic remedies by the alleged victim or the petitioner.
Clearly, for the same reason, Article 34(3) of the Commission’s Rules of Procedure stipulates
that “when 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
it is clear evident from the information contained in the petition.”
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 information contained in the petition.” It is in relation to this possibility that the Court’s
assertion that “(w)hen alleging 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, suitable and effective,” 37should 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 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 be 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 31(7) and (8) of the Commission’s Rules of Procedure point in the same
direction. Indeed, they establish that “(t)he relevant parts of the response and the documents
provided by the State will be communicated to the petitioner or his representative, inviting him
to submit his observations and evidence to the contrary, within 30 days,” and that “if the
requested information or documents are received, the relevant parts shall be transmitted to the
State, which shall be entitled to submit its final comments within 30 days.”
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,
37
Idem.
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