This also begs the question of whether the “study and initial processing” of the petition is
required, if it could be lodged without having previously exhausted the domestic remedies.
Certainly, if this step were only demanded at the time of deciding on the admissibility of
the petition, one might wonder what would be the point of initially studying the petition.
And, furthermore, what would be the reason and the practical effect of the Convention's
distinction between the time of submission of the petition and the time of its admissibility.
Indeed, if it were considered that the above requirement or rule should be fulfilled at the
time the decision on the admissibility of the petition is adopted and not at the moment it is
lodged, it is logical to ask what would be the point of the petition itself.
It should also be noted that, if the criterion that the above requirement must be fulfilled at
the time the petition is presented or supplemented is not followed and that, to the contrary,
the argument is adopted that this requirement is determined by the moment in which the
Commission rules on the admissibility of the petition, situations of open injustice or
arbitrariness would arise. This is because the opportunity to comply with the requirement
in question would ultimately depend not on the victim or the petitioner, nor on a rule valid
for all, but on the Commission's decision to rule on the admissibility or inadmissibility of
the petition, which on many occasions takes years to be adopted and could sometimes be
classified as arbitrary.
Finally, it is reasonable to presume that, with a more streamlined processing and, therefore,
more expeditious rulings by the Commission with respect to the admissibility of the petitions
“lodged,” which would most likely require more resources and adequate regulations for that
purpose, delays or setbacks in the processing of a considerable number of cases would
surely be avoided.
D. Consequences in the present case
The first consequence of considering - as the Judgment does - the rule of prior exhaustion
of domestic remedies as a requirement for the admissibility of the petition, is that it
ultimately makes it possible that the issue raised in the case with the filing of the petition
could vary considerably, transforming its object and seriously affecting the rights of one or
both parties to such an extent that the Court ends up ruling on an objection different from
the one raised, even changing the case.
In fact, what was alleged in this case was, logically, that the international wrong had already
been committed on the date of the pertinent petitions 29 and the State duly responded to
it, 30 obviously prior to the enactment of Law 8503, “Law on the Opening of Criminal
Cassation” and its transitory provision I, of 2006, 31 and also of Law No. 8837 “Creation of
an appeals procedure, other reforms to the appeals system and implementation of new
rules on oral proceedings in criminal cases,” of 2011. 32 However, the judgment analyzes
the objection related to the requirement of prior exhaustion of domestic remedies in order
29
Paras. 3 and 41.
30
Para. 40.
31
Para. 46.
32
Para. 55.
14
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