F. Peremptory rule
39.
that:
In accordance with the foregoing, it should also be recalled that Article 47(a) stipulates
“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.”
40.
This provision is peremptory. The Commission must declare inadmissible “any petition
or communication submitted” regarding which the domestic remedies have not been
exhausted or that does not comply with one of the situations established in Article 46(2).
41.
Evidently, the Commission must comply with the Convention and cannot, for example,
declare a petition or communication admissible even though, when it was “lodged,” it had not
met the requirement of the prior exhaustion of domestic remedies but rather had met this
requirement at the time that it was “admitted,” because if it does so, it would render it without
any real or practical effects, beyond initiating a procedure, but not the litigation.
42.
Indeed, if it is not required that domestic remedies have been exhausted before the
petition is lodged, or that the petition be lodged within six months of notification of the final
judgment, it would not be possible to require “that the subject of the petition or communication
is not pending in another international proceeding for settlement,” or “that the petition contains
the name, nationality, profession, domicile, and signature of the person or persons or of the
legal representative of the entity lodging the petition,” requirements that are also established
in Article 46 of the Convention, because all this could be remedied subsequently and, in any
case, before the declaration of admissibility, and the provisions of this article evidently do not
allow this.
G. Presentation and admissibility of the petition
43.
Lastly, it should be noted that the said articles of the Convention do not indicate that
the said requirements must be met when the Commission rules on the admissibility of the
petition or communication. Rather, it can be argued that they make a distinction between two
moments: one, at which the petition is “lodged” and another at which it is “admitted.” This is
also supported by the provisions of Article 48(1)(a) and in paragraphs (b) and (c) of the same
article.49
“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:
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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 information has not been
received, the Commission shall ascertain whether the grounds for the petition or communication still exist. If they do
not, the Commission shall order the record to be closed.
c. The Commission may also declare the petition or communication inadmissible or out of order on the basis of
information or evidence subsequently received.
d. If the record has not been closed, the Commission shall, with the knowledge of the parties, examine the matter set
forth in the petition or communication in order to verify the facts. If necessary and advisable, the Commission shall carry
out an investigation, for the effective conduct of which it shall request, and the states concerned shall furnish to it, all
necessary facilities.
e. The Commission may request the states concerned to furnish any pertinent information and, if so requested, shall
hear oral statements or receive written statements from the parties concerned.
f. The Commission shall place itself at the disposal of the parties concerned with a view to reaching a friendly settlement
of the matter on the basis of respect for the human rights recognized in this Convention.
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