32.
The foregoing appears evident and, if it is mentioned, it is to underscore – without
leaving any room for doubt – that the reference that the Court’s case law has made to this
rule being “conceived in the interests of the State” does not mean that the State is the holder
of the obligation to prove that it has been complied with. Therefore, the one obliged to do so
can only be the presumed victim, his or her representative, or the petitioner and it is
compliance with that obligation that allows the State to answer the petition lodged before the
Commission and, possibly, to present the objection of failure to exhaust domestic remedies.
E. Correct moment to lodge the petition
33.
It should also be repeated that the rule of the prior exhaustion of domestic remedies
logically constitutes a requirement that should be met before the petition is lodged before the
Commission and that the latter record that such remedies have been exhausted or that it was
impossible to do so.
34.
Indeed, it should be recalled that the Articles 46(1)(a) and 47(b) of the Convention
transcribed above refer to the “petition or communication lodged”; that is an instantaneous act
that occurs at a determined moment and that does not extend over time. The same can be said
of Article 48(1)(a) of the Convention, which establishes that:
“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.”
35.
Thus, the Convention indicates that the “petition or communication lodged,” the
“pertinent portions” of which are forwarded to the State concerned, which means that it is the
petition that should indicate compliance with the requirement of the prior exhaustion of
domestic remedies or the impossibility of this due to any of the circumstances established in
Article 46(2), also transcribed above, so that the State may respond and potentially file the
corresponding objection, which means that it is when the petition is lodged that this should
already have occurred.
36.
This interpretation is supported by Article 46(1)(b) of the Convention, which indicates
that the petition should have been:
“lodged within a period of six months from the date on which the party alleging violation of his
rights was notified of the final judgment.”
37.
Evidently, it should be understood that the said final judgment is the one delivered on
the final remedy that was filed, without there being any other that could be filed. In other
words, the time frame indicated to lodge the petition is calculated from the moment of
notification of the final judgment of the domestic authorities or courts on the remedies filed
before them, which are, consequently, those that may have given rise to the international
responsibility of the State, which obviously means that, when the petition is “lodged,” they
should have been exhausted.
38.
The foregoing is reinforced by the content of the said Article 46(1)(a) indicating the
requirement that “the remedies under domestic law have been pursued and exhausted”; in
other words it alludes to something that has already happened before the lodging of the
corresponding petition.
10