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E. Admissibility of the petition
In relation to admissibility, Article 28 of the Commission’s Rules of Procedure establishes that:
“(t)he Commission shall consider petitions regarding alleged violations of the human rights
enshrined in the American Convention on Human Rights, with respect to a State Party, only when
the petitions fulfill the requirements set forth therein, in the Statute, and in these Rules of
Procedure.” In turn, Article 30 of the same regulatory text indicates that “(s)ubject to the
provisions of Article 26, if the Commission considers that the petition is inadmissible or
incomplete, it shall notify the petitioner requesting him to complete the requirements omitted in
the petition.” Finally, Article 32(a) of said regulatory text states that that “(t)he Commission will
continue with the examination of the case by deciding on the following issues: a. the exhaustion
of domestic remedies, and may determine such measures as it deems necessary to clarify any
remaining doubts.”
It is clear from the aforementioned rules that prior exhaustion of domestic remedies is an
indispensable requirement for the Commission to consider the corresponding petition. And if this
requirement has not been met or if it is not included in full in the corresponding petition, the
Commission, within the framework of this consideration, will request the petitioner to complete
the latter. Finally, after this, the Commission decides on compliance with the rule of prior
exhaustion of domestic remedies, and may issue orders to clarify any remaining doubts in this
regard. Obviously, these doubts can only be related to the matter of whether or not the relevant
petition complied, at the time it was filed, with the requirement in question, i.e., it must refer to
the petition “lodged.” Such doubts, therefore, cannot mean that the requirement of prior
exhaustion of domestic remedies was complied with after the petition was filed.
In this connection, it should be pointed out that the aforementioned rules do not stipulate that
the remedies under domestic law must necessarily have been exhausted before a decision on
admissibility can be made, since such a decision may be to reject the petition on the grounds
that such remedies have not been exhausted.
It follows then, that although it is logical that the State must file the preliminary objection of
prior failure to exhaust domestic remedies during the procedure on 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.
This is evident if we consider that Article 38(a) of the Commission’s Rules establishes that “(t)he
Commission shall declare the petition inadmissible when: Any of the requirements established
in Article 29 of these Rules is omitted” and the latter includes “information on any steps taken
to exhaust domestic remedies, or the impossibility of doing so.”
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. In short, the
Commission's Rules of Procedure do not stipulate that domestic remedies must have been
exhausted at the time the Commission rules on the admissibility of the petition; on the contrary,
they state that, if it finds that the requirement of prior exhaustion of domestic remedies has not
been met or has been omitted, the Commission may request the petitioner to complete it and
even take steps to clarify any doubts that remain in this regard.
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