said petition, which – I repeat- must meet all the requirements stipulated, including
information on any steps taken to exhaust domestic remedies prior to its presentation.
For this reason, Article 31(3) of the Commission’s Rules of Procedure states that:
“When the petitioner contends that he or she is unable to prove compliance with the
requirement indicated in this article, it shall be up to the State concerned to
demonstrate to the Commission that the remedies under domestic law have not been
previously exhausted, unless that is clearly evident from the information contained in
the petition.” 24
However, it is only logical that in the event - not expressly contemplated in the
Commission's Rules of Procedure - that the petitioner indicates in his petition that he has
previously exhausted domestic remedies, i.e. that he has complied with the provisions of
Article 46(1)(a) of the Convention, the State may raise the argument or objection that this
has not occurred.
Consequently, it is undeniable that this response by the State must necessarily relate to
the petition that was “lodged” before the Commission, and that it is at that moment, and
not later, that the litigation or the adversarial proceedings are instituted with respect to the
prior exhaustion of domestic remedies.
It is evident, then, that compliance with the rule of prior exhaustion of domestic remedies
or the impossibility of such compliance, must be indicated in the petition; otherwise, the
State would not be able to provide a response on the matter. In other words, only if the
petition indicates that this rule has been complied with, or that it is impossible to do so,
may the State contest this claim and, as established by the Court, “specify which domestic
remedies have not yet been exhausted, and prove that these remedies were available,
adequate, suitable and effective.” 25 All the foregoing shows, once again, that this
requirement must be met previously, i.e. before drawing up the petition, the pertinent
portions of which are forwarded to the State precisely so that it may respond to them.
On the other hand, if the petition makes no reference whatsoever to the requirement in
question, it is only incumbent upon the State to point out that the petition does not comply
with it. In such a situation, imposing on the State the obligation to demonstrate the
existence of adequate, suitable and effective remedies that have not been exhausted, would
mean substituting the petitioner for the State as the holder of the obligation to previously
exhaust the domestic remedies as provided for in the Convention and in the Commission's
Rules of Procedure, and requiring the State to assume the burden of someone else’s
obligation.
And, for the same reason, it is at that moment that the domestic remedies must have been
exhausted or that the petitioner should have indicated the impossibility of doing so. To
affirm that those remedies could be exhausted after the petition has been “lodged” and,
consequently, notified to the State, would affect the essential procedural balance and would
24
Idem in relation to Article 31(3) of the current Rules of Procedure.
25
Para. 39.
11
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