object and purpose of the Convention and, consequently, makes a subsequent intervention
by the inter-American jurisdiction unnecessary.
28.
The rule of the prior exhaustion of domestic remedies signifies that, in those situations
in which it has been already been alleged in the relevant sphere of the domestic jurisdiction
that the State has not complied with its commitment to respect and ensure the free and full
exercise of human rights, it is possible to require the intervention of the international
jurisdictional instance so that, if appropriate, the State is ordered to comply with the
international obligations it has violated, provide a guarantee that it will not violate them again,
and redress all the consequences of such violations.45
29.
From this perspective, it can be argued that although the practical effect of the said
rule is that the State re-establish respect for the human rights violated as soon as possible –
the object and purpose of the Convention – it is also true that this rule has been established
(and perhaps, above all) to benefit the alleged victim of the human rights violation.
D. The holder of the obligation
30.
It is also necessary to underline that the Convention conceives the said rule as an
obligation that must be met prior to the “petition or communication lodged in accordance with
Articles 4446 or 45”47and this means that the responsibility for complying with this rule
corresponds to the person lodging the petition before the Commission; that is, “[a]ny person
or group of persons, or any non-governmental entity legally recognized in one or more member
states of the Organization,” who may subsequently intervene in the corresponding
proceedings.48
31.
Indeed, it can be argued, based on the said Article 46, that, for the pertinent petition
or communication to be admitted, the remedies of the domestic jurisdiction must have
previously been exhausted and, evidently, it is the alleged victim, his or her representative,
or the petitioner who must exhaust those remedies. It is not logical or coherent to make the
admissibility of a petition or communication based on a violation of human rights depend on
the State against which it is addressed having exhausted the domestic remedies against its
own actions – consisting in having violated human rights – because under this absurd
hypothesis, it would never be possible to have recourse to the international instance.
45
Idem.
46
Supra, footnote 12.
“1. Any State Party may, when it deposits its instrument of ratification of or adherence to this Convention, or at any
later time, declare that it recognizes the competence of the Commission to receive and examine communications in which
a State Party alleges that another State Party has committed a violation of a human right set forth in this Convention. 2.
Communications presented by virtue of this article may be admitted and examined only if they are presented by a State
Party that has made a declaration recognizing the aforementioned competence of the Commission. The Commission shall
not admit any communication against a State Party that has not made such a declaration. 3. A declaration concerning
recognition of competence may be made to be valid for an indefinite time, for a specified period, or for a specific case. 4.
Declarations shall be deposited with the General Secretariat of the Organization of American States, which shall transmit
copies thereof to the member states of that Organization
47
The Court’s 1996 Rules of Procedure indicated that: “[a]t the reparations stage, the representatives of the victims
or of their next of kin may independently submit their own arguments and evidence” (Art. 23). The Rules of Procedure
adopted in 2000, 2003 and 2009 established that: “[w]hen the application has been admitted, the alleged victims,
their next of kin or their duly accredited representatives may submit their requests, arguments and evidence,
autonomously, throughout the proceeding” (Art. 23(1)). The current Rules of Procedure, adopted by the Court at its
eighty-fifth regular session held from November 16 to 28, 2009, establish that: “[o]nce notice of the brief submitting
a case before the Court has been served, in accordance with Article 39 of the Rules of Procedure, the alleged victims
or their representatives may submit their brief containing pleadings, motions, and evidence autonomously and shall
continue to act autonomously throughout the proceedings” (Art. 25(1)).
48
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