petition meets the admissibility requirements, including the requirement of exhaustion of
domestic remedies,” and that “it is when examining admissibility that the Commission
decides whether or not the petition complies with this requirement, or whether any of the
exceptions established in the Convention are applicable. 40 This appears to suggest that
the Judgment follows the thesis set out in this opinion; namely, that it is on the adversarial
proceedings established or constituted by the petition and the corresponding observations
of the State that the Commission’s decision on the admissibility or inadmissibility of the
“lodged” petition should be based.
However, this is not so. The second reason indicated in the Judgment to reject the said
preliminary objection is that “the Commission’s Rules of Procedure make a distinction
between the time at which the initial processing is carried out, when it only examines
whether the petition includes information on “any steps taken to exhaust domestic
remedies, or the impossibility of doing so,” and the moment when it decides on
admissibility, when it determines whether such remedies were exhausted, or applies an
exception to this requirement.”41 Thus, the Judgment appears to lessen the obligation
contained in Article 28(h) of the Commission’s Rules of Procedure or to place the emphasis
on the fact that the petition must include “information,” rather than that this information
must be specifically on “any steps taken to exhaust domestic remedies, or the
impossibility of doing so.” In other words, it appears that, according to the Judgment, it is
sufficient that a general mention is made of some information on such steps in order to
meet the requirement to consider the petition, and not that the steps taken up until that
time – that is, up until the lodging of the petition - to exhaust such remedies are
indicated clearly and specifically.
To the contrary, this opinion affirms that the obligation established in Article 28(h) is
not merely that of providing “information” that steps were taken, but rather to provide
specific “information” on “any steps taken to exhaust domestic remedies, or the
impossibility of doing so.” Hence, the obligation consists in describing the steps
specifically taken which mean that the said remedies have already been exhausted or
indicating the impossibility of exhausting them. This obligation does not consist,
consequently, in providing general information that steps were taken, but in providing
specific information on the steps that were taken and that prove that either the domestic
remedies were exhausted, or that it was impossible to do this.
The third reason cited by the Judgment to reject the objection in question is indicated as
follows: “[t]he Court recalls that the rule of prior exhaustion of domestic remedies was
conceived in the interests of the State, because it seeks to exempt it from responding
before an international organ for acts it is accused of before it has had the occasion to
remedy them by its own means. Nevertheless, the subsidiary nature of the interAmerican system is not affected by the fact that the analysis of compliance with the
requirement of exhaustion of domestic remedies is made based on the situation when a
decision is taken on a petition’s admissibility. To the contrary, if any domestic remedy is
pending, the State has the opportunity to resolve the situation alleged during the
admissibility stage.”42
With this assertion, the Judgment forgets that compliance with the rule of prior exhaustion
of domestic remedies is basically an obligation that, even though it may benefit the State
40
Para. 26 of the Judgment.
41
Para. 26 of the Judgment.
42
Para. 27 of the Judgment.
16