SEPARATE OPINION OF JUDGE EDUARDO VIO GROSSI, CASE OF DÍAZ PEÑA v. VENEZUELA JUDGMENT OF JUNE 26, 2012 (Preliminary objection, merits, reparations and costs) Introduction The dissenting opinion with regard to the judgment in reference (hereinafter “the Judgment”) is presented, because the undersigned considers that the preliminary objection filed by the Bolivarian Republic of Venezuela (hereinafter “the State”) concerning the prior exhaustion of domestic remedies was admissible as regards the whole of the instant case and not only part of it, as indicated in this judgment, because, since this requirement had not been complied with opportunely, the Inter-American Commission on Human Rights (hereinafter “the Commission”) should have declared the petition lodged before, which originated the case, inadmissible. Consequently, the Commission should have abstained from processing the petition and, subsequently, submitting it to the Inter-American Court of Human Rights (hereinafter “the Court”). Hence, it was not incumbent on the Court to rule on its merits. The foregoing for the following reasons. 1. Decision on the admissibility of the petition Based on the provisions of Articles 44, 1 45(1) and (2), 2 46)(1)(a) 3 and (2), 4 47 5 and 48 6 of the American Convention on Human Rights (hereinafter “the Convention”), it is 1 “Any person or group of persons, or any non-governmental 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.” 2 “1. Any State Party may, when it deposits its instrument of ratification of or adherence to this Convention, or at any later time, declare that it recognizes the competence of the Commission to receive and examine communications in which a State Party alleges that another State Party has committed a violation of a human right set forth in this Convention. 2. Communications presented by virtue of this article may be admitted and examined only if they are presented by a State Party that has made a declaration recognizing the aforementioned competence of the Commission. The Commission shall not admit any communication against a State Party that has not made such a declaration. 3 “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.” 4 “2. The provisions of paragraphs 1.a and 1.b of this article shall not be applicable when: (a) the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated; (b) the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or (c) there has been unwarranted delay in rendering a final judgment under the aforementioned remedies. 5 “The Commission shall consider inadmissible any petition or communication submitted under Articles 44 or 45 if: (a) any of the requirements indicated in Article 46 has not been met; (b) the petition or communication does not state facts that tend to establish a violation of the rights guaranteed by this Convention; (c) the statements of the petitioner or of the state indicate that the petition or communication is manifestly groundless or obviously out of order; or (d) the petition or communication is substantially the same as one previously studied by the Commission or by another international organization. 6 “1. When the Commission receives a petition or communication alleging violation of any of the rights protected by this Convention, it shall proceed as follows: (a) If it considers the petition or communication admissible, it shall request information from the government of the state indicated as being responsible for the alleged violations and shall furnish that government a transcript of the pertinent portions of the petition or communication. This information shall be submitted within a reasonable period to be determined by the Commission in accordance with the circumstances of each case. (b) After the information has been received, or after the period established has elapsed and the