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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 the case, the petition “lodged”
may be “admitted” by the Commission.
Similarly, Article 46(1)(b) of the Convention is based on the same premise 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 the violation of his rights was notified of the final
judgment.” Undoubtedly, this should be understood to mean the judgment handed down on the
last remedy that was filed, with no other remedies available to 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, that 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 27(1) of the Commission's Rules of Procedure stipulates that the initial
processing is carried out on petitions “that fulfill all the requirements set forth,” which must
indicate, as established in the abovementioned Article 20(d), information on “the steps taken to
exhaust domestic remedies, or the impossibility of doing so,” and if they do not meet this
requirement, as established in Article 27(2) of said Rules, “the Secretariat of the Commission
may request that petitioner or his or her representative to fulfill them.”
Based on all the above, it can be concluded that, ultimately, compliance with the rule of prior
exhaustion of domestic remedies constitutes a requirement that the petition must meet in order
to be “lodged.”
C. Study and initial processing by the Commission
However, Article 46(1)(a) of the Convention is also conceived as a limit to the actions of the
Commission which may become a party to the ensuing litigation before the Court. Hence, the
purpose of this provision is to prevent the Commission from acting before the requirement or
rule that it establishes has been duly complied with in a timely manner; in other words, from
proceeding with the matter even though the domestic remedies have not been exhausted,
potentially affecting the procedural equality of the parties in the event that the case is heard by
the Court.
Therefore, the rule of prior exhaustion of remedies also entails an obligation for the Commission.
Indeed, according to Article 27 (1) of its Rules of Procedure, “ [t]he Executive Secretariat of the
Commission shall be responsible for the study and initial processing of petitions lodged before
the Commission that fulfill all the requirements set forth in the Statute and in these Rules of
Procedure.”
Indeed, the Executive Secretariat has the power provided for in Article 27 (2) of the Rules, which
states that “[i]f a petition does not meet the requirements […it may] request the petitioner or
his or her representative to fulfill them.”
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