6
The foregoing reveals that the Judgment deviates considerably from the meaning of the
above-mentioned rule and, consequently, from the essential requirements or conditions
for the petition in this case to be admitted by either the Commission or the Court.
Indeed, to the contrary, it would seem that in order to decide as it did in the Judgment,
the Court tacitly turns to the exception to the rule of the prior exhaustion of domestic
remedies established in Article 46(2)(a) of the Convention: that is, the inexistence in the
domestic legislation of the State of due process of law for the protection of the rights
that had allegedly been violated or that the said remedies were not available or were not
adequate, suitable, useful, effective and valid.
However, if the contents of the Judgment could be interpreted in this way, it would be
necessary to consider, first, that it was for the petitioner, rather than the Court, to
assert this exception. This is even established in the Commission’s Rules of Procedure
and, consequently, represents how the Commission interprets the corresponding
provisions of the Convention.17
Therefore, it could be affirmed that, by rejecting the preliminary objection of prior
exhaustion of domestic remedies, the Judgment is inconsistent with the general principle
of public law that it is only possible to do what the norm establishes, because it is
evident that there is no norm that confers on the Court – nor has this been established
in its Rules of Procedure, as, to the contrary, occurs in the case of the Commission – the
authority to request that what has been required of it be amended and, above all, to
make the amendment itself.
In this case and on this aspect, what was required was to accept or to reject the said
preliminary objection based on the legal and factual grounds asserted in the
proceedings, which relate to the moment at which it was considered that the
requirement of prior exhaustion of domestic remedies was or was not complied with, and
not that it was not essential to comply with this. On this basis then it could even be
considered that the Judgment distanced itself from the spirit of the Court’s case law, in
the sense that, just as “… it is not for the international organs to rectify the lack of
precision in the State’s arguments,”18 nor should this be done, based on the principle of
procedural balance or equality, with regard to those presented by the petitioners or by
the Commission.
It could also be affirmed that, by proceeding in this way, the Judgment establishes the
precedent that, in some cases, the rule of the prior exhaustion of domestic remedies
could be rendered meaningless or excessively relativized. Thus, this would occur to the
extent to which, by allowing the petitioner to lodge a petition with the Commission even
before the pertinent proceedings in the domestic jurisdiction had ended, based on the
presumption that its final judgment would be a conviction, not only would this be
accepting the coexistence of the proceedings of the said jurisdiction and of the interAmerican jurisdiction with regard to the same case, but also, it could cause this to
happen in other cases, and even that the latter jurisdiction be used to exert pressure of
some kind on the former.
17
Article 28(8) of the Commission’s Rules of Procedure: “Requirements for the Consideration of
Petition”… “Petitions addressed to the Commission shall contain the following information: … Any steps taken
to exhaust domestic remedies, or the impossibility of doing so as provided in Article 31 of these Rules of
Procedure;”
Art. 29(3) of these Rules: “Initial Processing”. …“If the petition does not meet the requirements of these Rules
of Procedure, the Commission may request that the petitioner or his or her representative complete them in
accordance with Article 26.2 of these Rules..”
18
Para. 16.