9
provisions that contemplate restrictions to State sovereignty must be interpreted and applied
taking into account this reality.
In this sense, the rule of prior exhaustion of domestic remedies is also an expression of the
validity of the sovereignty of the State and of the need to give the State the preferential
opportunity to act with respect to alleged human rights violations. This is even more relevant in
the present era, in which all States parties to the Convention are governed by the democratic
rule of law, i.e., they adhere to democracy. 32
Consequently, it can be deduced from the foregoing that compliance with the requirement
established in Article 46(1)(a) of the Convention must take place before the petition is submitted
to the Commission.
B. The petition
The first comment that should be made concerning the petition that initiates the procedure
before the Commission that may conclude before the Court is that compliance with the rule of
prior exhaustion of domestic remedies is, essentially, an obligation of the presumed victim or
the petitioner. It is the latter who must comply with the requirement of prior exhaustion of
domestic remedies; in other words, to be able to allege a violation before the inter-American
jurisdictional body, 33 the petitioner must previously do so before the corresponding domestic
jurisdictional bodies. Otherwise, this would evidently prevent the prompt and timely achievement
of the abovementioned effet utile. Thus, I reiterate, the aforementioned rule is a requirement or
obligation that must be met by the presumed victim or the petitioner.
This is why the Commission's Rules of Procedure in force at the time of the facts and at the time
the petition was lodged, 34 approved by the Commission, 35 which reflect the interpretation it has
given to Article 46 of the Convention, stipulates in Article 29(d), that the petition must contain
“information on any steps taken to exhaust domestic remedies, or the impossibility of doing so.”
Then, the petition itself must indicate that the rule in question has been complied with or that
one of the exceptions to it has operated.
Clearly for the same reason, Article 34(3) of the Commission’s Rules of Procedure establishes
that “(w)here the petitioner claims that he or she is unable to prove compliance with the
requirement of this Article, it shall be for the Government against which the petition is directed
to demonstrate to the Commission that domestic remedies have not been previously exhausted,
unless this is clear from the background information contained in the petition.”
In other words, this provision indicates that the specific exceptions to the rule of prior exhaustion
of domestic remedies are established in favor of the presumed victim or the petitioner.
Consequently, it is the petitioner and no one else, not even the Commission, who may argue or
Inter-American Democratic Charter adopted at the Twenty-eighth Special Session of the General Assembly of the
Organization of American States, by Resolution of September 11, 2001.
32
33
Art. 44 of the Convention: “Any person or group of persons, or any nongovernmental entity legally recognized in one
or more member states of the Organization, may lodge petitions with the Commission containing denunciations or
complaints of violation of this Convention by a State Party.”
Art. 61(1) of the Convention: “Only the States Parties and the Commission shall have the right to submit a case to the
Court.”
34
Hereinafter, the Rules of Procedure of the Commission.
35
Adopted by the Commission in its 660th Session, on April 8, 1980, hereinafter the Commission’s Rules of Procedure.
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