4
the issuance of said judgment was not a prerequisite for purposes of presenting the case
before the Commission.”8
14.
As such, I concur with the decision of the Inter-American Court in this case. Also, I
consider it necessary to take into account the conventional norms that govern procedure
before the Inter-American Commission, in order to properly interpret that procedure and for
the purposes of the effet utile of the Inter-American human rights system as a whole.
15.
Chapter VII of the American Convention establishes the organization, functions,
jurisdiction, and procedure of the Inter-American Commission in regard to the rights
recognized therein. In Section 3, on the Jurisdiction of the Commission, Article 46(1) states:
Admission by the Commission of a petition or communication lodged in accordance
with Articles 44 or 45 shall be subject to the following requirements:
a) that the remedies under domestic law have been pursued and exhausted in
accordance with generally recognized principles of international law;
[…]
16.
By way of a literal interpretation of the norm, stemming from the ordinary meaning
of its terms,9 it can be inferred that the assessment made by the Inter-American
Commission on the exhaustion of domestic remedies occurs in the determination of
admissibility.
17.
It is necessary to distinguish between three procedural stages, namely: a) the filing
of the initial petition b) its initial assessment, through a preliminary examination (prima
facie), and if appropriate, the transfer of the relevant parts of the petition to the respondent
State, and c) the admission of the case, if considered relevant, before the inter-American
system, through the adoption of the Report on Admissibility.
18.
In this regard, the Order of Preliminary Objections in the case of Castillo Petruzzi and
others v. Peru, the Inter-American Court noted that “the receipt of the complaint, which
derives from an act of the complainant, should not be confused with its admission and
processing, which are accomplished by specific acts of the Commission itself, such as the
decision to admit the complaint and, when appropriate, the notification of the State.” 10
19.
It was necessary to interpret Article 46(1) in relation to the procedure in question;
thus, while the inter-American system is subsidiary and complementary, the integrative
nature of the system requires that a distinction be established between the time in which
the initial petition is filed by the petitioner, and the preliminary inquiry (initial processing)
which the Inter-American Commission carries out in response to the petition.11 In the latter
procedural stage, the admissibility is assessed of the relevant parts that are to be forwarded
8
Para. 18 of the Judgment.
9
See the Vienna Convention on the Law of Treatises. Article 31. General rule of interpretation. I. to treaty
shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in
their context and in the light of its object and purpose.
10
Case of Castillo Petruzzi et al. V. Perú. Preliminary Objections. Order of September 4, 1988, Series C No.
41, para. 54.
11
Articles 26 to 29 of the Rules of Procedure of the Inter-American Commission on Human Rights and the
Rules of Procedure in force when the admissibility of the petition filed by Mr. Liakat Ali Alibux on March 9, 2007 was
decided upon.