F. The Court’s ruling
Lastly, in relation to the Court’s function as regards compliance with the requirements
that the petition must meet, it should be recalled that, according to Article 61(2) of the
Convention, “[i]n order for the Court to hear a case, it is necessary that the procedures
set forth in Articles 48 and 50 shall have been completed.”
Thus, the Court must verify that the requirement of prior exhaustion of domestic
remedies has been duly complied with before the Commission. As the Court has
asserted, “in matters that it is hearing, the Court has the authority to carry out a
control of the legality of the Commission’s actions,”34 and that it “has the authority to
review whether the Commission has complied with the statutory and regulatory
provisions, as well as those of the Convention.”35
And it could not be otherwise, because if it were not so, the Commission would be
accorded the broadest possible authority to take an exclusive and final decision on the
admission or rejection of a petition, which would clearly mean that this power would be
discretionary and could even be arbitrary, undermining the jurisdiction of the Court,
because, in this hypothesis, the Court would have no alternative but merely to be an
entity that confirms or observes, without even ratifying, the actions of the Commission,
and there can be no doubt that this is not in keeping with the letter and spirit of the
said Article 61(2) of the Convention.
G. Consequences of considering the rule of prior exhaustion of domestic
remedies as a requirement for the admissibility of the petition and not a
requirement of the petition itself
In addition to the above considerations, it should be reiterated that if it were not
compulsory to have exhausted the domestic remedies before lodging the petition, it
would be permissible that, at least for some time – that is, between the moment at
which the petition is lodged and the moment at which the decision is taken on its
admissibility (which in many situations may be considered extremely lengthy) – the
same case could be dealt with simultaneously by both the domestic jurisdiction and the
international jurisdiction. This would evidently render the statement in the second
paragraph of the Preamble meaningless, and even the rule of prior exhaustion of
domestic remedies as a whole. In other words, in this situation, the inter-American
jurisdiction would not reinforce or be complementary to the domestic jurisdiction, but
rather would substitute it or, at least, could be used to bring pressure to bear on the
latter and, clearly, this is not what the Convention seeks.
Moreover, it might constitute an incentive, which could be considered perverse, to lodge
petitions before the Commission when the said requirement has not been met in the
hope that it can be complied with before the Commission decides on their admissibility
and, evidently, this was not anticipated or sought by the Convention.
In addition, this 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. Indeed, if this requirement was only compulsory when deciding on
34
Case of Cruz Sánchez et al. v. Peru. Preliminary objections, merits, reparations and costs. Judgment of
April 17, 2015, para. 37.
35
Case of Cruz Sánchez et al. v. Peru. Preliminary objections, merits, reparations and costs. Judgment of
April 17, 2015, para. 75.
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