effectiveness of the domestic remedies that have not been exhausted, all of which means –
let me repeat – that this requirement must have been met previously or the impossibility of
meeting it alleged, before lodging the petition the pertinent parts of which are forwarded to
the State precisely for it to respond to them.
71.
To the contrary, if the petition does not make any mention of the said requirement,
the State need only indicate this situation; that is, that the petition does not meet the
requirement. In this situation, imposing on the State the obligation to prove the existence of
adequate, suitable and effective remedies that have not been exhausted means substituting
the State for the petitioner as holder of the obligation established in the Convention and in
the Commission’s Rules of Procedure to previously exhaust the domestic remedies and to
provide the “information on the measures taken to exhaust the remedies of the domestic
jurisdiction or the impossibility of doing so” and imposing on it a burden due to a third party
obligation.
72.
It should also be repeated that, for the same reason, it is at the time that the petition
is submitted that the domestic remedies should have been exhausted or that it is indicated
that it is impossible to do so because, if it is argued that these remedies could be exhausted
following the “submission” of the petition and, consequently, its notification to the State, this
would affect the essential procedural equilibrium and leave the latter defenseless, because it
would be unable to file the pertinent preliminary objection in due time and manner.
73.
It is within this framework that the words of the Court “that an objection to the exercise
of its jurisdiction based on the supposed failure to exhaust domestic remedies should be filed
at the appropriate procedural moment; that is, during the admissibility procedure before the
Commission”62 should be understood because, as described, this covers from the moment the
petition is received and receives the initial processing by the Commission, through its
Executive Secretariat, until the moment at which the Commission rules on its admissibility.
However, this does not mean that it is only at this last moment that the said requirement
should have been met, without regard to whether or not it had been met previously.
D. Decision on admissibility
74.
Indeed, Article 31(1) of these Rules of Procedure, entitled “Exhaustion of Domestic
Remedies,” establishes that:
“In order to decide on the admissibility of a matter, the Commission shall verify whether the
remedies of the domestic legal system have been pursued and exhausted in accordance with
the generally recognized principles of international law.”63
75.
It should be noted that this article indicates that, in order to decide on the admissibility
of a matter, the Commission must “verify” – in other words, confirm or validate 64 – whether
the remedies of the domestic legal system have been pursued and exhausted which, clearly,
should have occurred at least before adopting the corresponding decision. This rule does not
establish that this verification should be made in relation to remedies pursued and exhausted
following the presentation of the petition.
76.
Meanwhile, Article 32(1) of these Rules of Procedure, entitled “Statute of Limitations
for Petitions,” conforms to the above interpretation when indicating that:
62
Para. 16.
63
Art. 31(1).
64
Diccionario de la Lengua Española, Real Academia Española, 2018 edition.
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