16
exhaustion of domestic remedies as a whole. In other words, in this situation, the inter-American
jurisdiction would not reinforce or be complementary to the domestic jurisdiction, but rather
would substitute it or, at least, could be used to bring pressure to bear on the latter and, clearly,
this is not what the Convention seeks.
Moreover, it might constitute an incentive, which could be considered perverse, to lodge petitions
before the Commission when the said requirement has not been met in the hope that it can be
complied with before the Commission decides on their admissibility and, evidently, this was not
anticipated or sought by the Convention.
In addition, this begs the question of whether the “study and initial processing” of the petition is
required, if it could be lodged without having previously exhausted the domestic remedies.
Indeed, if this requirement was only compulsory when deciding on the admissibility of the
petition, it is legitimate to question why it would be necessary to make an initial study of the
petition and, furthermore, what would be the reason for and the practical effect of the Convention
making a distinction between the moment of the lodging of the petition and the moment of its
admissibility. Likewise, if it is considered that the said requirement or rule must be complied
with when the decision on the admissibility of the petition is taken and not when it is lodged, it
is logical to question the meaning of the petition itself.
It should also be noted that, if the criterion that this compliance should have taken place at the
time the petition is lodged or completed is not respected and, to the contrary, the thesis is
adopted that compliance is determined when the Commission decides on the admissibility of the
petition, this would result in situations of evident injustice or arbitrariness, insofar as the moment
of this compliance would ultimately depend not on the victim or the petitioner, but on the
Commission’s ruling when deciding on the admissibility or inadmissibility of the petition.
Finally, it is reasonable to assume that, if the Commission were to make timely and expeditious
rulings regarding the admissibility of the petitions “lodged,” it would certainly avoid delays or
setbacks in the processing of a considerable number of cases.
III.
THE FACTS RELATING TO THE OBJECTION OF PRIOR FAILURE TO EXHAUST
DOMESTIC REMEDIES
Based on the norms that have been mentioned, the relevant facts relating to the objection of
non-compliance with the rule of prior exhaustion of domestic remedies are as follows.
A. Those set out in in the petition
The petition, presented by the Center for Studies and Action for Peace (Centro de Estudios y
Acción para la Paz - CEAPAZ), was received by the Commission on July 26, 1991, 45 and relates
to events that took place on July 4 of the same year, 46 that is to say, events that occurred 26
days earlier. The petition states 47 that those facts had taken place, describes the complaints that
were filed and requests that it “communicate with the Peruvian government authorities, given
the possibility that the minors” it identifies “are detained-disappeared.”
45
Para. 2.
46
Para. 1.
47
Para. 44.
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