rather, to “verify”29 whether, at the time the petition was lodged, the requirement had been
met.
This becomes clear in view of Article 36 of the Commission’s Rules of Procedure, that once “it
has considered the positions of the parties, the Commission shall make a decision on the
admissibility of the matter.”
There can be no question, then, that the moment when the Commission rules on the
admissibility of the petition is different from the moment when the petition is lodged or
completed. This is patently evident since the Commission’s Rules of Procedure call for an
“initial processing”30 of the petition, for it to be “registered”31 and its “relevant parts”32
forwarded to the State; it is only after the State responds that the Commission examines
admissibility, and for this purpose, it “verifies”33, that is, confirms, that the requirements have
been met, including the requirement for prior exhaustion of domestic remedies.
To summarize, the Rules of Procedure of the Commission do not stipulate that domestic
remedies need to have been exhausted at the time it rules on admissibility of the petition.
Instead, it says that this is when the Commission “verifies” whether remedies were initiated
and exhausted beforehand, or whether it was not necessary; that is, it performs a second
review of whether the petition is consistent with the Convention, comparing it with the
provisions of the Convention regarding the requirements that need to be met for it to be either
“admitted” or dismissed.
As added emphasis, it is enough to reiterate that if it were not mandatory to have exhausted
domestic remedies before formulating the petition, it would therefore be permissible, for a
certain amount of time while the petition is being lodged (recognizing that under many
circumstances, this can be very lengthy), for a single case to be in process simultaneously
before both the domestic courts and the international jurisdiction. Such a situation would
clearly render meaningless the provisions of the above-mentioned paragraph two of the
preamble and even the overall rule on prior exhaustion of domestic remedies. The interAmerican jurisdiction would, in such a case, cease to be reinforcing or complementing the
domestic jurisdiction, and instead would replace it, or at least be wielded as a pressure tactic,
which was certainly not the intent of the Convention.
Indeed, under this hypothesis, it could become an incentive, even a perverse one, to take
submissions to the Commission even when this requirement has not been met, in hopes that
it can be met before the Commission rules on its admissibility, which is also inconsistent with
the object or purposes of the Convention.
29
Art. 31(1) of the Rules of Procedure of the Commission.
30
Art. 29 of the Rules of Procedure of the Commission.
31
Idem.
32
Art. 30(2) of the Rules of Procedure of the Commission.
33
Art. 31(1) of the Rules of Procedure of the Commission.
11
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