domestic remedies must be accomplished prior to the claim made, which confirms the
interpretation set out in this document.
49.
Based on all the above, it is very evident that – pursuant to the provisions of the
Convention and if the criteria is accepted according to which the requirement of prior
exhaustion of domestic remedies may be met after the corresponding petition is lodged before
the Commission – in this hypothesis, the petition could have no content whatsoever or be
impossible to understand and, thus, this would allow the case to which it referred to be
addressed simultaneously by the domestic jurisdiction and by international justice, an absurd
situation and one that was obviously not established by the Convention.
I. Exceptions to the rule of prior exhaustion of domestic remedies
50.
Article 46(2) stipulates:
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.
51.
Accordingly compliance with the rule of the prior exhaustion of domestic remedies
admits the three exceptions established in the above article, all factual matters in light of
international law that must be weighed by the Commission or the Court, as and when
appropriate.
52.
However, regarding the moment to invoke them, it is also evident that this is in the
petition, so that the processing of the said exceptions to the rule of the prior exhaustion of
domestic remedies follows the course of the petition.
IV.
THE REGULATIONS
53.
The foregoing also includes the Rules of Procedure of the Commission itself when
regulating the admissibility procedure of the petition lodged before the Commission and,
therefore, reflects its interpretation of Article 46 of the Convention.52 This procedure
differentiates between the lodging of the petition and its initial review, the forwarding of the
petition to the State, the State’s response, the observations of the parties and, lastly, the
decision on its admissibility.
A. Initial review by the Commission
54.
Therefore, the content of Article 26 of these Rules of Procedure must be considered
and they establish:
“Initial Review. 1. The Executive Secretariat of the Commission shall be responsible for the
study and initial processing of petitions lodged before the Commission that fulfill all the
requirements set forth in the Statute and in Article 28 of these Rules of Procedure.
The Rules of Procedure in force at this time were adopted on March 18, 2013, and entered into force on August 1
that year. Since the 2006 Rules of Procedure were in force when the petition was lodged, the equivalent articles are
indicated in footnotes to the corresponding articles of the Rules of Procedure currently in force.
52
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