“The Commission shall consider those petitions that are lodged within a period of six months
following the date on which the alleged victim has been notified of the decision that exhausted
the domestic remedies.”65
77.
In other words, this provision establishes the petitions whose admissibility will be
considered by the Commission and, to this end, reiterates the provisions of Article 46(1)(b)
of the Convention; that is, that the time frame for submitting them is calculated from the date
of notification of the final judgment of the domestic authorities or courts on the remedies that
have been filed before them, which are, consequently, those that could have given rise to the
international responsibility of the State, and this obviously means that, when the petition is
“lodged,” they must have been exhausted.
78.
That said, according to Article 36 of these Rules of Procedure, entitled “Decision on
Admissibility”:
“1. Once it has considered the positions of the parties, the Commission shall make a decision
on the admissibility of the matter. The reports on admissibility and inadmissibility shall be public
and the Commission shall include them in its Annual Report to the General Assembly of the OAS.
2. When an admissibility report is adopted, the petition shall be registered as a case and the
proceedings on the merits shall be initiated. The adoption of an admissibility report does not
constitute a prejudgment as to the merits of the matter.
3. In exceptional circumstances, and after having requested information from the parties in
accordance with the provisions of Article 30 of these Rules of Procedure, the Commission may
open a case but defer its treatment of admissibility until the debate and decision on the
merits..”66
79.
In this regard, it should be indicated that the said article does not establish that the
remedies of the domestic jurisdiction necessarily should have been exhausted to be able to
adopt the decision on admissibility because that decision may be not to admit the petition,
precisely because it has not exhausted those remedies.
V. CONCLUSION
80.
Based on all the foregoing, it may be concluded that, in order to lodge a petition before
the Commission accusing a State Party to the Convention of violating any human right
recognized therein, the petitioner must previously have exhausted the domestic remedies and
then, in the petition, describe the measures taken to this end or the impossibility of exhausting
such remedies. It is also my opinion that, it is with regard to this petition or the relevant parts
thereof that the State in question should be notified so that, in its response, it can refute the
petitioner’s assertion of having previously exhausted the domestic remedies or the
impossibility of doing so, filing the corresponding objection. And, evidently, if the petition
does not mention compliance with the requirement of the prior exhaustion of domestic
remedies, the State is not obliged to take a stand in that regard.
80.
It should also be indicated that, if the petition includes information on exhaustion of
the domestic remedies or the impossibility of doing so, it is based on the submission of the
petition and the response of the State that the relevant litigation is founded and,
consequently, it is regarding whether at that time – and not subsequently – such remedies
65
Arts. 32(1) and 35.
66
Arts. 36(1), (2) and (3) and 38.
18