34.
Thus, the Convention indicates that the “petition or communication lodged,” the
“pertinent portions” of which are forwarded to the State concerned, which means that it is the
petition that should indicate compliance with the requirement of the prior exhaustion of
domestic remedies or the impossibility of this due to any of the circumstances established in
Article 46(2), also transcribed above, so that the State may respond and potentially file the
corresponding objection, which means that it is when the petition is lodged that this should
already have occurred.
35.
This interpretation is supported by Article 46(1)(b) of the Convention, which indicates
that the petition should have been:
“lodged within a period of six months from the date on which the party alleging violation of his
rights was notified of the final judgment.”
36.
Evidently, it should be understood that the said final judgment is the one delivered on
the final remedy that was filed, without there being any other that could be filed. In other
words, the time frame indicated to lodge the petition is calculated from the moment of
notification of the final judgment of the domestic authorities or courts on the remedies filed
before them, which are, consequently, those that may have given rise to the international
responsibility of the State, which obviously means that, when the petition is “lodged,” they
should have been exhausted.
37.
The foregoing is reinforced by the content of the said Article 46(1)(a) indicating the
requirement that “the remedies under domestic law have been pursued and exhausted”; in
other words it alludes to something that has already happened before the lodging of the
corresponding petition.
F. Peremptory rule
38.
that:
In accordance with the foregoing, it should also be recalled that Article 47(a) stipulates
“The Commission shall consider inadmissible any petition or communication submitted under
Articles 44 or 45 if: (a) any of the requirements indicated in Article 46 has not been met.”
39.
In other words, this provision is peremptory. The Commission must declare
inadmissible “any petition or communication submitted” regarding which the domestic
remedies have not been exhausted or that does not comply with one of the situations
established in Article 46(2).
40.
Evidently, the Commission must comply with the Convention and cannot, for example,
declare a petition or communication admissible even though, when it was “lodged,” it had not
met the requirement of the prior exhaustion of domestic remedies but rather had met this
requirement at the time that it was “admitted,” because if it does so, it would render it without
any real or practical effects, beyond initiating a procedure, but not the litigation.
41.
Indeed, if it is not required that domestic remedies have been exhausted before the
petition is lodged, or that the petition be lodged within six months of notification of the final
judgment, it would not be possible to require “that the subject of the petition or communication
is not pending in another international proceeding for settlement,” or “that the petition contains
the name, nationality, profession, domicile, and signature of the person or persons or of the
legal representative of the entity lodging the petition,” requirements that are also established
in Article 46 of the Convention, because all this could be remedied subsequently and, in any
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