3
the handling of this procedural issue is concerned. First, under the American
Convention, the two supervisory organs, the Commission and the Court, have
defined powers, the former being entrusted with competence to decide on the
admissibility of applications (Articles 46-47), the latter with jurisdiction (in
contentious cases) to determine whether there had been a violation of the
Convention (Article 62(1) and (3)).
The preliminary (procedural) question of
admissibility is one and indivisible: just as decisions of inadmissibility of applications
by the Commission are regarded as final and without appeal, the dismissal by the
Commission of an objection of non-exhaustion of local remedies should likewise be
regarded as final and not susceptible of being retaken by the respondent
Government in subsequent proceedings before the Court.
(This naturally
presupposes that admissibility decisions are based upon a thorough examination of
the facts of the cases by the Commission.) This position would assist in diminishing
the factual inequality of status between the alleged victims and the respondent
Governments in proceedings before the Court, and would seem to satisfy the
requirements of pure logic (given the unity and indivisibility of jurisdiction) and of
the general plan of the Convention (whereby a case could only be referred to the
Court after first having been examined by the Commission). The local remedies rule,
as a preliminary objection to the admissibility of applications, was never meant to be
resorted to twice in a case, that is, to be raised or pursued to the advantage of the
respondent Government twice, in proceedings before the Commission and later
before the Court.
7.
Secondly, to proceed otherwise would amount to shifting the emphasis from
the overriding concern to secure an effective protection to victims of alleged human
rights violations to the more circumscribed concern with the proper internal structure
of the international jurisdictional body. It should not pass unnoticed that the local
remedies rule is not concerned with the internal structure of an international
jurisdictional body, but its purpose is of a different nature: as a preliminary
objection, to be raised in limine litis, it is meant to afford the State an opportunity at
that stage to remedy the alleged wrong before the complaint can be dealt with in its
merits by the international organ concerned. Thus, it is not, after all, a matter of
“restricting” the powers of the Court on the point at issue, but rather of
strengthening the system of protection as a whole, in a way which is beneficial to the
alleged victims, in pursuance of the accomplishment of the object and purpose of
human rights treaties.
8.
Thirdly, in further support of this view, to assume a review jurisdiction of the
Court in such questions of admissibility as the local remedies rule would appear to
attempt against the equality of arms and to create a disparity between the parties.
Even if the applicant had won his case before the Commission, he would be
surrounded by uncertainties as to the outcome of the case, and could after a
prolonged litigation be denied a judgement on the merits by the Court. Why was a
respondent Government allowed to challenge before the Court the dismissal by the
Commission of an objection of non-exhaustion if the alleged victim was not allowed
to challenge before the Court the upholding by the Commision of an objection of
non-exhaustion? This appears to amount to a considerable unfairness, to the
detriment of the alleged victim.
9.
Fourthly, there would further be a case for avoiding a repetitious and timeconsuming work by the Court, not only in the procedure on the merits, but also in
the handling of the evidence: it would indeed be very unwise to extend such
repetition regularly also to questions of admissibility, without any tangible or real