21
of the State’s arguments.” 56 However, it does not mention that this rule also applies to the
petition, which, as noted above, did not refer to the rule of prior exhaustion of domestic
remedies, either to indicate that it had been complied with or to invoke one of its exceptions.
CONCLUSION
In view of the foregoing, it is clear that the judgment did not consider that the petition should
indicate whether or not it had met the requirement of prior exhaustion of domestic remedies. In
doing so, it did not comply with the provisions of Article 46 of the Convention, which requires
that the admissibility on which the Commission must rule is on the petition “lodged.”
Consequently, the judgment validated the Commission’s actions, which, in turn, were in violation
of the provisions of Article 29(d) of its own Rules of Procedure.
Furthermore, the judgment did not consider that the petition did not invoke the provisions of
Article 46(2) of the Convention and Article 34(3) of these Rules of Procedure, that is to say, it
did not allege any reason for the impossibility of previously exhausting domestic remedies.
On the other hand, and despite the above, the Commission applied, ex officio, that is, without
the petition having requested it, the provisions of Article 46(2) of the Convention, i.e. one of the
exceptions to compliance with the rule of prior exhaustion of domestic remedies, which was
supported by the judgment.
Clearly, all of this led the judgment to base its decision to reject the preliminary objection
regarding the non-exhaustion of domestic remedies on facts that occurred well after the petition
and its completion.
It should also be noted that the judgment does not refer to the lack of information and, therefore,
possibly to the Commission’s failure to fulfill its obligation to request the petitioner to complete
his petition if it does not include information on the prior exhaustion of domestic remedies, as
required by Article 27(2) of its Rules of Procedure.
And it is clear that all these shortcomings affected the State’s capacity to defend itself and the
principle of procedural equality between the parties in this case.
However, it should also be added that the judgment, by invoking the State's acknowledgment
of certain facts, grants said unilateral legal act a scope that it in no way had, especially given
that it did not consider that it expressly excluded from its scope everything related to a possible
acknowledgment of international responsibility and that it was formulated to demonstrate that,
in any case, the latter had already been remedied in the domestic sphere.
Likewise, the judgment requires the State to indicate the domestic remedies that have not been
exhausted and to show their availability, adequacy, suitability and effectiveness, given that such
obligation is only and exclusively foreseen in the event that the petition indicates that such
remedies have been exhausted or that it is not appropriate for them to be exhausted.
Based on these proceedings and as expressed in the judgment, it is once again evident that
there is doubt as to the value, usefulness and effectiveness of the petition and of the State's
response or observations to it. This is because everything that is set forth and requested in such
56
Idem.
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