4. Mandatory rule
In accordance with the foregoing, we may also recall article 47(a), which states that:
“(T)he Commission shall declare inadmissible any petition or communication lodged
in accordance with Articles 44 or 45 when: any of the requirements indicated in Article
46 has not been met.”
In other words, this provision is imperative. The Commission must declare inadmissible
“any petition or communication lodged” that has not exhausted the domestic remedies or
that does not reflect one of the situations contemplated in Article 46(2).
Evidently, the Commission cannot do otherwise than what has been indicated - such as, for
example - declaring a petition or communication admissible even though, at the time it is
“lodged” the requirement of prior exhaustion of domestic remedies has not been met, but
has been met at the time it is “admitted”, since if it does so, as it has effectively and
repeatedly done, it renders the aforementioned Article 46(1) meaningless and even the
petition itself.
Indeed, if it does not require the exhaustion of domestic remedies prior to the filing of the
petition or that the petition be filed within six months after final notification, it could not
require that “the subject of the petition or communication is not pending in another
international proceeding for settlement” or that it “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 stipulated in Article 46 of the
Convention, since all of this could be remedied later and, in any case, before the declaration
of admissibility, which is clearly not in accordance with the provisions of this rule.
5. Presentation and admissibility of the petition
Finally, it should be noted that the aforementioned articles of the Convention do not indicate
that the requirements must be met at the time the Commission rules on the admissibility
of the petition or communication. Rather, it can be argued that the aforementioned articles
of the Convention distinguish between two moments, namely, one in which the petition or
communication is “lodged” or filed, and the other in which it is “admitted.” This would also
be supported by the provisions of Article 48(1)(a) and, likewise, by the provisions of
subparagraphs b) and c) of the same article, which establish that:
“When the Commission receives a petition or communication alleging violation of any
of the rights protected by this Convention, it shall proceed as follows: [...]
b) After the information has been received, or after the period established has
elapsed and the information has not been received, the Commission shall ascertain
whether the grounds for the petition or communication still exist. If they do not, the
Commission shall order the record to be closed;
c) The Commission may also declare the petition or communication inadmissible or
out of order on the basis of information or evidence subsequently received.”
7
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