It is worth asking whether the “study and initial processing” of the petition would make sense
at all if it were not necessary for domestic remedies to have been exhausted before it is
lodged. If the requirement became mandatory only when the admissibility decision on the
petition is made, then one wonders what could be the purpose of the initial study. One could
also ask for what practical purpose the Convention distinguishes between the time the petition
is lodged and the time it is held admissible. If it is true that this requirement or rule should
be fulfilled at the time the admissibility decision is made, rather than when the petition is
lodged, the natural question to ask is what purpose the petition even serves.
As an additional cautionary note, if it is not the case that this requirement should be met at
the time the petition or its supplement is lodged, but instead, the time period for compliance
depends on when the Commission rules on admissibility, the natural result could be clear
injustice or arbitrariness. Under such a view, this period would depend, not on the victim or
the petitioner, but on the Commission’s decision to rule on admissibility or inadmissibility of
the petition, a period that would certainly not be the same in all cases, and no one would
know far enough in advance.
F. The Court’s ruling
Finally, the Court also has a role regarding compliance with the requirements for the petition;
it should be recalled that, according to the provisions of Article 61(2) of the Convention, “(i)n
order for the Court to hear a case, it is necessary that the procedures set forth in Articles 48
and 50 shall have been completed.”
It thus falls to the Court to verify that the petition before the Commission was fully in
compliance with the requirement on prior exhaustion of domestic remedies. As the judgment
says, “when the Court examines matters, it has the authority to review the legality of the
Commission’s action”34 or that it “has the power to review whether the Commission has
complied with the provisions of the American Convention, the Statutes and the Rules of
Procedure.”35
This is as it must be. To hold otherwise would grant the Commission the broadest power to
decide, exclusively and autonomously, whether to admit or reject a petition, clearly making
such a power discretionary and even arbitrary. This would strip the Court of its own authority,
as in such a case, it would be left little choice but to serve as a mere forum to confirm or
substantiate, but not even endorse, the work of the Commission. Unquestionably this is not
consistent with the letter and spirit of Article 61(2) of the Convention, transcribed above.
II.
THE FACTS REGARDING THE OBJECTION FOR FAILURE
DOMESTIC REMEDIES
34
Para. 37 of the judgment.
35
Para. 75 of the Judgment.
TO EXHAUST
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