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THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS’INITIAL REVIEW OF PETITIONS, ITS BACKLOG, AND

THE PRINCIPLE OF SUBSIDIARITY

ALVARO PAUL*

INTRODUCTION

The basic institutions of the human rights system of the Organi-zation of American States (OAS) resemble, to some extent, theEuropean system of human rights in its early years of existencewhen there was the joint operation of a commission and a court ofhuman rights. Both the Inter-American Commission on HumanRights (Commission) and the Inter-American Court of HumanRights (Court) have been crucial to the protection and restorationof the fundamental rights of thousands of people in the Americas.One of the ways that the system achieves this goal is by processingindividual petitions, where individuals complain about specifichuman rights violations committed by states in the Americas.1

The Commission receives petitions against states that have rati-fied the American Convention on Human Rights (ACHR),2 as wellas against states that have not, including the United States andCanada. With regards to petitions filed against the former, theACHR allows the presentation of an individual’s case before theCourt, but the petition must first go through a process before theCommission.3 In its more than thirty-five years of existence, the

* Professor of International Law and Human Rights, Pontificia Universidad Catolicade Chile. Ph.D., Law, Trinity College Dublin; LLM, University of Oxford. The authorwould like to thank Marta Tavares, Christian Gonzalez, and Lea Sarles Newfarmer for theirhelp and comments on this article. This study is dedicated to all those who have worked inthe Commission’s Registry Section, for their important work to promote respect for humanrights. An earlier version of this paper was published in Spanish in Alvaro Paul Dıaz, LaRevision Inicial de Peticiones ante la Comision Interamericana y la Subsidiariedad del Sistema deDerechos Humanos, 43 REV. DERECHO PONTIF. UNIV. CATOLICA VALPARAISO 609–639 (2014).

1. See JO M. PASQUALUCCI, THE PRACTICE AND PROCEDURE OF THE INTER-AMERICAN

COURT OF HUMAN RIGHTS 5–6 (2003).2. Organization of American States (OAS), American Convention on Human Rights,

art. 44, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 [hereinafter ACHR].3. The Inter-American Commission on Human Rights (Commission) functions in a

“quasi-judicial role, like that assigned to the ‘Ministerio Publico’ of the inter-Americansystem” and “has, inter alia, the function of investigating allegations of violations of humanrights . . . that must be carried out in all cases that do not concern disputes relating tomere questions of law.” In the matter of Viviana Gallardo et al., Inter-Am. Ct. H.R. (ser. A)

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20 The Geo. Wash. Int’l L. Rev. [Vol. 49

Court has issued more than two hundred final judgments dealingwith an extensive array of issues.4

The processing of petitions filed against OAS member states thathave not ratified the ACHR is very similar to the process for thosethat have. There are, however, two major differences when stateshave not ratified the treaty. First, the Commission does not applythe obligations recognized in the ACHR, but instead applies onlythose obligations that have been recognized in the American Dec-laration of the Rights and Duties of Man.5 Secondly, if the Com-mission believes there has been a violation on the part of the state,it will issue a recommendation to the state, but it will not send thematter to the Court.6

The need for this Article arises from the clear discrepancybetween the number of petitions submitted to the Commission andthe number of cases that it opens for processing. For example, in2015, the Commission received 2,164 petitions and opened only208 petitions for processing,7 which means that the petitionsreceive some sort of report, even if the report only indicates inad-missibility.8 One may wonder what happens to the vast majority of

No. G 101/81, ¶ 22 (Nov. 13, 1981). The Commission’s process is regulated by Articles44–51 of the American Convention on Human Rights (ACHR).

4. For more information about the Inter-American Court of Human Rights (Court),see I/A Court History, INTER-AM. CT. OF HUM. RTS., http://corteidh.or.cr/index.php/en[https://perma.cc/433C-UFLT] (last visited May 18, 2016).

5. Christina M. Cerna, Reflections on the Normative Status of the American Declaration ofthe Rights and Duties of Man, 30 U. PA. J. INT’L. L. 1211, 1233–1234 (2009).

6. Christina Cerna, The Inter-American Commission on Human Rights: Its Organisationand Examination of Petitions and Communications, in THE INTER-AMERICAN SYSTEM OF HUMAN

RIGHTS 77 (2004).7. Statistics, INTER-AM. COMM’N ON HUM. RTS., http://www.oas.org/en/iachr/multi

media/statistics/statistics.html [https://perma.cc/PQT7-JMJD] (last visited Aug. 17,2016).

8. The 208 cases that were opened for processing in 2015 were submitted to theCommission in different years. Given the delay in reviewing the petitions and because thepetitions are not necessarily analyzed in chronological order, it is not easy to determinehow many of the petitions that were presented during the same calendar year are open forprocessing at any given time. Therefore, the number of petitions that are lodged to theCommission in one year is here compared to the number of petitions that are open forprocessing that same year (even if they were submitted to the Commission in differentyears). This comparative difficulty notwithstanding, the proportion of petitions submittedand those that receive a report is relatively similar from year to year, so these numbers are auseful reflection of the problem examined herein. Statistics for 2015 also show that inaddition to the 208 cases open for processing, 876 were not accepted for processing, 107were archived, forty-two received admissibility reports, two received reports of inadmissibil-ity, five were able to be resolved through a friendly settlement, five received reports on themerits that were published, and fourteen were sent to the Court. Id. It is worth noting thatthe 208 cases that were opened for processing and the 876 that were not accepted forprocessing amount to only 1,084 processing decisions, which is much lower than the num-



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2016] Inter-American Commission on Human Rights 21

petitions that are submitted to the Commission, and further specu-late that the Commission selects the cases that it decides to analyze,using methods similar to the United States Supreme Court’s “con-trol of the docket” principles.9 This, however, is not the case;rather, the Commission evaluates and responds to all the petitionsthat are presented to it.10

The discrepancy between the large number of petitions that arepresented to the Commission and the low number of petitions thatare opened for processing occurs because the Commission’s Secre-tariat makes an initial review (or “initial evaluation,” or “prelimi-nary evaluation”) of petitions.11 In this initial review, theSecretariat determines whether, on the basis of a prima facie analy-sis, the petition contains the elements that characterize a possibleviolation of the rights protected by Inter-American instruments,whether the remedies under domestic law have been exhausted,and whether the petition’s presentation has complied with the nec-essary formalities.12 A former Commissioner has called the Secre-tariat a “hidden judiciary” when processing petitions.13

Even though the Commission does not expressly acknowledge it,the initial review constitutes a study of admissibility, albeit a prelim-inary one. In it, the Secretariat rejects the petitions that it mosteasily identifies as unable to continue their processing.14 A deci-sion that the complaint does not qualify for processing is madewithout prior notice to the state, allowing the Commission to notifythe state solely regarding those cases that it considers to havemerit.15 Only petitions that pass through this first filter will later

ber of petitions that were lodged before the Commission. The Commission’s report may,however, reveal some inaccuracies.

9. See David Fontana, Docket Control and the Success of Constitutional Courts, in COMPARA-

TIVE CONSTITUTIONAL LAW 624 (2011).10. OAS, PETITION AND CASE SYSTEM INFORMATIONAL BROCHURE ¶ 37 (2010), http://

www.oas.org/en/iachr/docs/pdf/HowTo.pdf [https://perma.cc/SJH3-LNUG] [hereinaf-ter PETITION AND CASE SYSTEM INFORMATIONAL BROCHURE].

11. Id. ¶¶ 37–38.12. OAS, Inter-American Comm’n on Human Rights: Strategic Plan 2011–2015 20

(2011), http://scm.oas.org/pdfs/2011/CP27341E.pdf [https://perma.cc/H8J4-DSMP][hereinafter STRATEGIC PLAN].

13. Dinah Shelton, The Rules and the Reality of Petition Procedures in the Inter-AmericanHuman Rights System, 5 NOTRE DAME J. INT. COMP. LAW 1, 10 (2015). The former Commis-sioner even says that the Secretariat’s involvement in this process could generate a prob-lem of lack of legitimacy, since the awareness of the Commission (understood as the sevenCommissioners) in each petition is not particularly deep. This Article makes no majordistinction between the Commission and its Secretariat, as the Commission has controlover the Secretariat.

14. See id. at 10–11.15. See id. at 11.



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result, after a long and detailed analysis, in a report.16 This reportmay conclude that the petition is admissible or inadmissible,declare a friendly settlement, archive the file, focus on the meritsof the petition, or refer the case to the Court.17

This Article argues that the principle of subsidiarity has a role toplay in solving the Commission’s procedural delay problem, partic-ularly at the phase of initial review of petitions. Given the limitedscholarly explanation of the procedure of initial review,18 a signifi-cant portion of this Article will be devoted to this description.19

Next, the Article analyzes the significant procedural delays affect-ing the stage of initial review and the need to address this problem.In the analysis, the Article draws comparisons between the ways theInter-American Court of Human Rights and the European Courtof Human Rights (ECtHR) operate. The Article then describes thestructural reforms undertaken by the Commission to solve theaforementioned problem, and recommends two measures that areconcrete examples of how the principle of subsidiarity could beimplemented to reduce the procedural delays in the Commission’swork: the rejection of applications that try to use the Commissionas a “fourth instance,” and the outright dismissal of applicationsthat do not seem to have exhausted domestic remedies.

16. See id. at 10–14, 25.17. See INTER-AM. COMM’N ON HUM. RTS., 2015 ANNUAL REPORT: THE PETITION AND

CASE SYSTEM 63, (2016) http://www.oas.org/en/iachr/docs/annual/2015/doc-en/InformeAnual2015-cap2-AyB-estadisticas-EN.pdf [https://perma.cc/Y8KS-HSRB] [herein-after PETITION AND CASE SYSTEM].

18. See, e.g., Shelton, supra note 13, at 10–14; UNIV. OF TEX. SCHOOL OF LAW HUMAN RRIGHTS CLINIC, MAXIMIZING JUSTICE, MINIMIZING DELAY: STREAMLINING PROCEDURES OF THE

INTER-AMERICAN COMMISSION ON HUMAN RIGHTS 111 (2011); Alvaro Paul Dıaz, La RevisionInicial de Peticiones ante la Comision Interamericana y la Subsidiariedad del Sistema de DerechosHumanos, 43 REV. DERECHO PONTIF. UNIV. CATOLICA VALPARAISO 609–639 (2014); RomanDe Antoni, El Registro de Peticiones de la Comision Interamericana de Derechos Humanos, III DER-

ECHOS HUM. INFOJUS 77 (2014); Nelson Camilo Sanchez & Laura Lyons Ceron, El Elefanteen la Sala. El Retraso Procesal en el Sistema de Peticiones Individuales del Sistema Interamericano, inDESAFIOS DEL SISTEMA INTERAMERICANO DE DERECHOS HUMANOS NUEVOS TIEMPOS, VIEJOS

RETOS 230 (2015).19. In view of the lack of instruments that deal with the initial review phase in a com-

prehensive way, I describe this procedure based not only on documents, but also on myown work as an intern at the Commission (where I analyzed cases in the Registry Section),as well as on discussions with Commission officials and on the experience of advising andassisting people who petition the Commission. This information may also be obtained byanyone who brings a petition to the Inter-American Commission. Similarly, I gatheredsome of the information on the European system during my study visit with the EuropeanCourt of Human Rights (ECtHR). The information provided here is neither sensitive norconfidential.



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I. PROCEDURE FOR INITIAL REVIEW OF PETITIONS

A. Initial Review as an Admissibility Examination

Article 47 of the ACHR provides that the Commission maydeclare certain petitions inadmissible.20 Some scholars have notedthat the Commission analyzes the admissibility of petitions beforeand after notifying the state.21 This would imply that the initialreview process would be a preliminary evaluation of admissibility.This Article endorses that view, because it is consistent with theprovision of Article 48(1)(a) of the ACHR, which indicates that thestudy of admissibility can be done before the state is notified of thepetition.22

However, certain Court statements could undermine classifica-tion of this initial review as an admissibility examination. In Memolivs. Argentina, for example, the Court referred in general terms tothe initial review process, and stated that “as of the Commission’s2000 Regulations, the initial review stage is expressly differentiatedfrom the admissibility stage.”23 According to the Court, once thepetition has been opened for processing “the admissibility pro-ceeding begins and the pertinent part[s] of the petition are for-warded to the State in question.”24 More recently, in Wong Ho Wingv. Peru, the Court made similar statements.25 These statements,however, are not sufficient to deny that the decision on the initialreview acts as a kind of admissibility test, because the ACHR onlyallows the Commission to refuse to process a petition if it is inad-missible.26 Thus, if the initial review is not an examination into

20. ACHR, supra note 2, art. 47.21. Rodrıguez Pinzon affirms that the Commission makes some decisions about admis-

sibility before it informs the state about the petition and, in many instances, without eitherthe supervision of the Commissioners or a decision-making process that is public and rea-soned. Diego Rodrıguez Pinzon, The “Victim” Requirement, the Fourth Instance Formula and theNotion of “Person” in the Individual Complaint Procedure of the Inter-American Human Rights Sys-tem, 7 ILSA J. INT’L. & COMP. L. 1, 15 (2001). Acosta and Amaya also refer to the stage ofinitial review as part of the stage of deciding on admissibility, but they consider that it iswhen the petition is open to processing in the strictest sense that the issue of admissibilityis examined. JUANA INES ACOSTA-LOPEZ & ALVARO FRANCISCO AMAYA-VILLARREAL, CON-

TROVERSIAS PROCESALES EN EL SISTEMA INTERAMERICANO DE DERECHOS HUMANOS 49 (2009).22. See ACHR, supra note 2, art. 48(1)(a) (“If it considers the petition or communica-

tion admissible, it shall request information from the government of the state . . . .”).23. Memoli v. Argentina, Preliminary Objections, Merits, Reparations and Costs,

Inter-Am. Ct. H.R. (ser. C) No. 265, ¶ 35 (Aug. 22, 2013).24. Id.25. See Wong Ho Wing v. Peru, Preliminary Objection, Merits, Reparations and Costs,

Inter-Am. Ct. H.R. (ser. C) No. 297, ¶ 26 (June 30, 2015).26. ACHR, supra note 2, art. 48(1)(a).



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admissibility, then the Commission would be rejecting petitions ina way that is not expressly authorized by the ACHR.

B. Receipt of the Petition and Procedures of the Registry Section

The procedure for the initial review of petitions is regulated byArticles 26 and 30(1) of the Commission’s Rules of Procedure.27

These regulations only roughly describe what happens at this stage,and the Commission has not further detailed the process. Somedocuments refer to issues that are relevant to the initial review, butnone analyze this particular stage in a systematic way. The Court,for its part, has referred only briefly to the procedure, saying thatduring the initial processing, “the Executive Secretariat of theCommission may, inter alia, request the petitioner or his represen-tative to complete the information presented, and decide to pro-cess petitions that comply with the [Commission’s]requirements.”28

There are two ways of initiating a petition, mainly through theCommission’s new Individual Petition System Portal, created inJuly 2015,29 but also by sending a written message to the Commis-sion. If the petitioner uses the former, the proceeding will bemore streamlined, and those who lodge a petition will be able toreview its progress online.30 If the petitioner sends a written mes-sage, the administrative staff will have to classify the document itreceives31 as either a petition or general correspondence.32 Oncethe staff has classified the document, they will determine whetherthe document contains or constitutes a request for precautionarymeasures.33 If it does, the petition will be handled by the Group of

27. OAS, RULES OF PROCEDURE OF THE INTER-AMERICAN COMMISSION ON HUMAN

RIGHTS arts. 26, 30(1) (entered into force Aug. 1, 2013) [hereinafter IACHR RULES].28. Memoli, Inter-Am. Ct. H.R. (ser. c) No. 265, ¶ 35; see also Wong Ho Wing, Inter-

Am. Ct. H.R. (ser. c) No. 297, ¶ 26.29. See Press Release, OAS, IACHR Launches Individual Petition System Portal (July

22, 2015), http://www.oas.org/en/iachr/media_center/PReleases/2015/082.asp [https://perma.cc/LTS7-ZHD8].

30. Id.31. This process has been referred to as “registration of petitions.” STRATEGIC PLAN,

supra note 12, at 75. R

32. According to the 2011–2015 Strategic Plan, the Registry Section receives about18,000 pieces of general correspondence per year. Id. In some cases it can be difficult todistinguish between an individual petition for redress and a document that seeks only tonotify the Commission of a particular violative situation.

33. See Shelton, supra note 13, at 12. R



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Protection;34 if not, the request will go to the Registry Section.35

The Registry Section was created in 2007, with the sole task of eval-uating delayed petitions.36 This internal unit of the Commission iscurrently responsible for carrying out initial reviews (in addition tothe Procedural Delay Group, which will be described below in ref-erence to the current developments within the Commission37).The Registry Section is headed by a chief counsel, and has divisionsdevoted to the analysis of various types of violations.38

The Registry’s coordinating team divides petitions by subject,according to the principal violation alleged in the complaint.39

This categorization helps determine the portfolio where the peti-tion belongs. (Each portfolio is the responsibility of a lawyer whoanalyzes specific topics.40) The team also identifies which cases arelikely to be benefited by the per saltum procedure,41 and whetherthere is a petition that deals with politically sensitive violations thatshould be reported to the Commissioners, such as violations thatwould relate to the president of a state.42 Then, an acknowledge-ment of the petition’s receipt is sent to the petitioner, pursuant toArticle 29(1) of the Commission’s Rules of Procedure.43 At thattime, the petitioner also receives the petition’s reference number,so that the petitioning party can send new information if neces-sary.44 Some of these proceedings are streamlined if the petition ispresented via the Individual Petition System Portal.

34. The current structure of the Commission was described in a presentation byEmilio Alvarez Icaza Longoria, entitled Dialogo con Sociedad Civil (Dialogue with Civil Society),156th Session of the Inter-American Commission on Human Rights (Oct. 21, 2015)(recording on file with author) [hereinafter Alvarez Icaza Longoria Presentation]. See alsoINTER-AM. COMM’N ON HUM. RTS, ORGANIZATIONAL CHART (2012), http://www.oas.org/en/iachr/docs/pdf/EngCIDH_Org_10Oct2012%20v4.pdf [https://perma.cc/8WTG-NGFU](describing the former structure of the Court).

35. Alvarez Icaza Longoria Presentation, supra note 34. R36. Reorganization of the Executive Secretariat of the Inter-American Commission on Human

Rights (IACHR), PERMANENT COUNCIL OF THE OAS 1 (Feb. 20, 2009), http://scm.oas.org/IDMS/Redirectpage.aspx?class=CP/CAJP&classNum=2693&lang=e [https://perma.cc/6AKH-PGPM].

37. See infra Section III.A.2.38. The groups of different types of violations are called portfolios. See supra note 19. R39. See supra note 19. R40. See supra note 19. R41. This is an expedited procedure. See infra Section I.F.42. On the other hand, former Commissioner Shelton has affirmed that “it is not

unknown for cases to be delayed in the secretariat because they are deemed politicallysensitive or to wait out a particular commissioner’s term.” Shelton, supra note 13, at 11. R

43. IACHR RULES, supra note 27, art. 29(1). This procedure occurs automatically if Rthe petitioner lodges his petition through the Individual Petition System Portal.

44. PETITION AND CASE SYSTEM INFORMATIONAL BROCHURE, supra note 10, ¶¶ 35–36. R



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Once the Registry Section has carried out the proceduredescribed above, the petition will be presented to a lawyer or fellowof the Commission, who is in charge of analyzing the particulartype of alleged violation.45 Next, the petition must await the prelim-inary evaluation of its admissibility. In principle, the petitions areanalyzed in order of arrival.46 Nevertheless, the Commissionmakes some exceptions to this rule, as described below.47

Once it is time for a petition to be examined by the Commission,a lawyer from the Registry Office (or a fellow, or a practicing internunder the close observation of one of the aforementioned) willprepare an evaluation report.48 The report examines whether thepetition includes the information required by Article 28 of the Reg-ulations of the Commission and meets the basic admissibilityrequirements.49 The evaluation examines the facts alleged by thepetitioners and whether they constitute a violation of any article ofthe American Declaration of the Rights and Duties of Man or theACHR.50 The report also assesses whether domestic remedies havebeen exhausted and suggests action, which may include openingthe petition for processing, requesting more information, or rejec-tion.51 The format of the evaluation has been simplified so as toenable the Commission to be more efficient.52

Interestingly, petitions that are being processed by the Commis-sion are kept confidential, whereas in the European system, all doc-uments that are sent to the ECtHR (except those related to afriendly settlement and others indicated by the president of thechamber) are accessible to the public.53

C. Group for the Receiving and Opening of Petitions

Once the Registry Section evaluates the petition, it will bepresented to the Group for the Receiving and Opening of Petitions

45. See supra note 19. R46. IACHR RULES, supra note 27, art. 29(2). R47. Id.48. See supra note 19. R49. See supra note 19. R50. This will depend on whether the state has ratified the ACHR.51. See supra note 19. R52. The evaluation formerly allowed the inclusion of comments from those who coor-

dinate the various rapporteurships, units, and thematic sections. The (now abolished)regional sections could also comment on the evaluation.

53. See PHILIP LEACH, TAKING A CASE TO THE EUROPEAN COURT OF HUMAN RIGHTS 30,39 (3d ed. 2011).



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(GRAP).54 This is a committee that includes the Legal Director ofthe Commission (a position currently occupied by its AssistantExecutive Secretary55), the Registry lawyers, and may include thosewho coordinate the various rapporteurships, units, and thematicworking groups of the Commission.56 At the (usually weekly)meetings of the GRAP, the legal team and Registry interns presenttheir assessments of individual petitions.57 The GRAP decideswhether the recommendation presented by the Registry Sectionofficial in charge of the petition is appropriate, and thus deter-mines the final outcome of the preliminary assessment.58

This outcome could be the rejection of its opening to process-ing, the request of additional information or documentation fromthe soliciting party, or the opening of the petition for processing.59

The GRAP may deem it necessary to study possible violations thathave not been explicitly claimed by the petitioner.60 The GRAPmay request more information on a certain aspect of the petitionand decide to analyze the petition again in a further meeting.61 InCommission jargon, a petition re-analyzed in a subsequent GRAP iscalled “volver” (to go back).62 The Commissioners will not beinvolved in the initial review, unless the Secretariat has doubts as towhether the submission fulfills the admissibility requirements.63

A state will be notified about a petition only once the GRAP hasauthorized its processing.64 Then the procedure described in Arti-cle 30 of the Rules of the Commission begins.65 If the GRAPdecides that the petition will not be open for processing, it willnotify the petitioner.66 This decision, as mentioned above, is a dec-laration of inadmissibility (although it is not presented as such bythe institutions of the Inter-American system) because the Commis-

54. Sanchez & Lyons Ceron, supra note 18, at 234. The acronym GRAP derives from Rits name in Spanish, Grupo de Recepcion y Apertura de Peticiones. There does not seem to bean official translation of the GRAP.

55. Alvarez Icaza Longoria Presentation, supra note 34. R56. See supra note 19. R57. De Antoni, supra note 18, at 86 (stating GRAP meets every week); see supra note R

19. R58. See supra note 19. R59. PETITION AND CASE SYSTEM INFORMATIONAL BROCHURE, supra note 10, ¶ 38. R60. See supra note 19. R61. See supra note 19.62. See supra note 19.63. See Shelton, supra note 13, at 10. R64. See Sanchez & Lyons Ceron, supra note 18, at 234. R65. See supra note 19. R66. See supra note 19.



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sion may only reject petitions that are inadmissible.67 The Courthas ruled that the Commission’s statements of inadmissibilityrequire an express declaration,68 so the Commission shouldexpressly indicate, when notifying the petitioner, that his or herpetition will not be opened for processing due to its inadmissibility.However, the petitioner is not duly informed of the reason for therejection of its petition.69

D. The Remedy of Revision

Many petitioners, once they are notified that their petition willnot be opened for processing, lodge before the Commission a rem-edy of revision.70 The Commission estimated that between 2011and 2015 it would receive approximately 600 requests per year ask-ing that it revisit its decisions.71 According to the Commission,these “requests generally undergo a summary review because theydo not introduce new facts.”72 In some cases, however, if there arenew facts or the domestic remedies were exhausted after the Com-mission decided not to open the petition for processing, then theCommission can decide to perform a reassessment.73 This processis somewhat similar to that of the ECtHR, where inadmissibilitydecisions are final, but the ECtHR has found “in the interests ofjustice” that “in exceptional circumstances, it may reopen a casewhich has previously been declared inadmissible.”74

67. ACHR, supra note 2, art. 48(1)(c). R

68. Velasquez-Rodrıguez v. Honduras, Preliminary Objections, Inter-Am. Ct. H.R.(ser. C) No. 1, ¶¶ 39–40 (June 26, 1987); Fairen-Garbi and Solıs-Corrales v. Honduras,Preliminary Objections, Inter-Am. Ct. H.R. (ser. C) No. 2, ¶¶ 44–45 (June 26, 1987);Godınez-Cruz v. Honduras, Preliminary Objections, Inter-Am. Ct. H.R. (ser. C) No. 3, ¶¶42–43 (June 26, 1987); Certain Attributes of the Inter-American Commission on HumanRights (Arts. 41, 42, 44, 46, 47, 50 and 51 of the American Convention on Human Rights),Advisory Opinion OC-13/93, Inter-Am. Ct. H.R. (ser. A) No. 13, ¶ 40 (July 16, 1993).

69. Shelton, supra note 13, at 10–11. R

70. The Inter-American Court described “the remedy of revision as an exceptionalrecourse for preventing a res judicata from maintaining a patently unjust situation resultingfrom the discovery of a fact which, had it been known at the time the judgment was deliv-ered, would have altered its outcome, or which would demonstrate the existence of a sub-stantive defect in the judgment.” Genie-Lacayo v. Nicaragua, Application for JudicialReview of the Judgment of Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No.45, ¶ 10 (Sept. 13, 1997).

71. STRATEGIC PLAN, supra note 12, at 76. R

72. Id.73. Id.74. LEACH, supra note 53, at 42. R



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E. Procedural Delays in the Process of the Initial Review of Petitions

The Commission receives around 2,000 petitions per year.75

This volume is a source of tension because the Commission’s pro-cedures are not designed to deal with such a high number of peti-tions,76 generating what is often referred to as “proceduraldelay.”77 For instance, according to the Commission’s 2015 statis-tics, there were 9,673 petitions that year awaiting an initial review.78

This number has been constantly increasing.79 The cases that areawaiting a decision on admissibility or merits have similarly beenincreasing.80 In 2014, the Commission was just beginning toaddress the petitions received in 2009 (except for the petitions thatbenefited from the per saltum procedure).81 In other words, peti-tioners had to wait about five years for their petitions to be lookedat for the first time, apart from the time necessary to study thepetition once it is “open for processing.”82 This delay is far fromwhat the Commission intended: its goal was to inform the peti-tioner, within three months from the moment of the lodging of thepetition, whether his or her petition could be processed.83

There has been significant criticism of the Commission’s lengthyreview schedule. For example, the delay in proceedings before theCommission was examined in detail by the Human Rights Clinic ofthe University of Texas, in a work supervised by Ariel Dulitzky, aformer Deputy Executive Secretary of the Commission.84 And inthe Memoli case, the state of Argentina, when raising a preliminaryobjection, made reference to the deadlines of the Commission’s

75. Statistics, supra note 7. R76. See INTER-AM. COMM’N ON HUM. RTS. 2015 ANNUAL REPORT: ACTIVITIES OF THE

IACHR IN 2015 ¶ 9, http://www.oas.org/en/iachr/docs/annual/2015/doc-en/InformeAnual2015-cap1-EN.pdf [https://perma.cc/F67Q-H569] [hereinafter IACHR ACTIVITIES

2015].77. See Ariel Dulitzky, Too Little, Too Late: The Pace of Adjudication of the Inter-American

Commission on Human Rights, 35 LOY. L.A. INT’L & COMP. L. REV. 131, 137 (2013).78. Statistics, supra note 7. R79. In 2014 there were 9,039; in 2013, 8,548; in 2012, 7,208, and in 2011, 6,134. Id.80. There was a slight decrease in 2015. Id. The number of petitions awaiting a

decision on the merits or admissibility was 1,903 in 2015; in 2014, 1,955; in 2013, 1753; in2012, 1,704; and in 2011, 1,645. Id.

81. Evidence of procedural delay also exists in some of the Commission’s petitionreports: some of them describe the time that the process took. For example, in the VeraMejıas case, the procedural delay was over four years before the petition was initiallyreviewed (this time was only interrupted by the Commission’s receipt of more informa-tion). See Juan Fernando Vera Mejıas v. Chile, Inter-Am. Comm’n H.R., Report No. 11/13,Petition 157-06, ¶ 4 (2013).

82. See id.83. See STRATEGIC PLAN, supra note 12, at vii. R84. See UNIV. OF TEX. SCHOOL OF LAW HUMAN RIGHTS CLINIC, supra note 18, at 16. R



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process of initial review and criticized the delays before state notifi-cation of a petition (at that point the delay was of three years andten months).85 The Commission is currently trying to addressthese problems by taking some special measures and institutingstructural reform.86

F. The Per Saltum Procedure

1. Description of the Applicable Regulations

Some years ago, in response to its procedural delay problem, theCommission established a new procedure called per saltum, “whichinvolves the initial review of the petition departing from the chron-ological order in which it was received, inasmuch as it is believedthat the passage of time would substantially affect the very purposeof the functions of the Commission.”87 That a petition has beengranted the benefit of a per saltum procedure does not mean thatit will be accepted, or that it will be resolved immediately. It onlymeans that the petition’s initial review will be expedited in the Reg-istry Section. Once the GRAP decides that the petition should beopened for processing, the Commission will notify the state andthe ordinary admissibility process will begin in the “Petitions Sec-tion,” which will determine how quickly the petition will beprocessed.

The per saltum procedure used to be an internal practice of theExecutive Secretariat, duly authorized by the Commission but notcodified by any specific legal norm.88 Then, the 2013 reform of theCommission’s Rules of Procedure expressly regulated this practicein Article 29(2), which sets out the grounds for initiating a persaltum procedure.89 Some of the grounds are objective, clearlydefined, and mandate indisputable and permanent priority, suchas those which govern petitioners who suffer from a terminal ill-

85. Memoli v. Argentina, Preliminary Objections, Merits, Reparations, and Costs,Inter-Am. Ct. H.R. (ser. C) No. 265, ¶ 36 (Aug. 22, 2013).

86. See IACHR ACTIVITIES 2015, supra note 76, at 14. These measures are described Rinfra.

87. INTER-AM. COMM’N ON HUM. RTS., REFORM PROCESS – 2012, ¶ 116 (Oct. 23, 2012),http://oasmailmanager.oas.org/en/iachr/strengthening/docs/RespCPEn.pdf [https://perma.cc/9TYH-VMRH]. The text goes on to make the following declaration: “Past per-formance of the Executive Secretariat shows that the maximum capacity to handle peti-tions on a per saltum basis is at 10% of all petitions reviewed.” Id.

88. CTR. FOR JUSTICE & INT’L LAW (CEJIL), RESPUESTA DE CEJIL SOBRE REFORMAS

REGLAMENTARIAS 10–11 (Mar. 1, 2013), http://www.oas.org/es/cidh/consulta2013/docs/2013%2003%2001%20CEJIL%20Respuesta%20Reformas%20CIDH.pdf [https://perma.cc/Q8X9-REYU].

89. See IACHR RULES, supra note 27, art. 29(2). R



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ness.90 Some grounds, while objective, are not defined clearly,such as those which prioritize petitions whose victim is an “olderperson.”91

In addition to objective grounds, Article 29(2)(d) allows theCommission to define new situations in which it is appropriate toinitiate the per saltum procedure.92 It may be initiated when adecision “could have the effect of repairing serious structural situa-tions that would have an impact in the enjoyment of human rights”or could “promote changes in legislation or state practices andavoid the reception of multiple petitions on the same matter.”93

For example, the Commission applied this type of priority to casesdealing with “false positives” in Colombia.94 These were caseswhere civilians were killed by members of the Colombian Armywho, in order to obtain government incentives, falsely accused thecivilians of being Revolutionary Armed Forces of Colombia(FARC) guerillas killed in combat.95 The Commission alsogranted, for a time, the per saltum procedure to petitions involvingviolations based on sexual orientation and gender identity.96

2. Possible Improvements to the Rules Governing the PerSaltum Procedure

Article 29(2) of the Rules of Procedure presents some complexissues. For example, it provides that the Commission “may,” incases “such as” those indicated by the Rules, expedite a petitionand prioritize its review.97 The term may indicates that prioritizingthe petition is a choice rather than a duty. This wording gives theCommission broad discretionary powers to prioritize some of the

90. Id. art. 29(2)(a)(ii).91. Id. art. 29(2)(a)(i). The Commission has internally decided that this standard

applies only to people over 80 years old, but is presently considering reducing this thresh-old. See supra note 19. R

92. IACHR RULES, supra note 21, art. 29(2)(d).93. Id. art. 29(2)(d)(i)–(ii).94. See supra note 19. R95. See INT’L CRIMINAL COURT, SITUATION IN COLOMBIA INTERIM REPORT ¶ 8 (Nov.

2012), http://www.icc-cpi.int/NR/rdonlyres/3D3055BD-16E2-4C83-BA85-35BCFD2A7922/285102/OTPCOLOMBIAPublicInterimReportNovember2012.pdf [https://perma.cc/E2VT-9P6A].

96. This was based on a 24-month Action Plan that sought, among other things, toposition the issue of sexual orientation in such a way that would encourage the creation ofthe LGBTI (lesbian, gay, bisexual, transgender, and/or intersex) Rapporteurship. Thetwenty-four month action plan (developed on the basis of the Strategic Plan 2011-2015)explains, “cases alleging of discrimination based on sexual orientation will be prioritizedand processed.” STRATEGIC PLAN, supra note 12, at 91. R

97. IACHR RULES, supra note 27, art. 29(2). R



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petitions that fit into the criteria outlined in the Rules of Proce-dure, but not prioritize others. Such an interpretation of Article29(2) could lead to arbitrariness. Furthermore, the term such asimplies that the Commission may prioritize petitions that do not fitthe criteria in Article 29, even though these criteria are alreadyquite broad. Article 29, therefore, does not limit the power of theCommission, which should be the raison d’etre for an article thatconfers such exceptional power. Indeed, the per saltum procedureserves to discriminate between different petitions, favoring somepetitions over others that may have to wait for several years beforereview, so its contours should be clearly defined.

Another problem with Article 29 is its lack of precision. As sug-gested above, expressions such as “older person” or “child” are rel-ative,98 and do not give petitioners any certainty as to whether theyfit within these categories. Therefore, for the purposes of provid-ing greater legal certainty and reducing the perception that theprocess is discretionary, the rule should be made more objectiveby, for example, specifying the age range of an “older person” or“child” for the purposes of the Commission’s review process.99

Similarly, the Commission could introduce clearer standards inthe subjective rule of Article 29(2)(d). This would reduce thechances of having a discriminatory result from the processdescribed above. This Article does not question the convenienceof the rule’s prioritizing mechanism, but rather suggests that themechanism should rely on criteria that are more or less objec-tive.100 A lack of objective criteria could lead to a situationwhere—in the context of its current procedural delays—the Com-mission chooses the issues it wants to address, performing docket

98. See id. art. 29(2)(a)(i).99. These expressions have a meaning that is independent from what can be found in

national or international instruments, such as Article 1 of the United Nations Conventionon the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3, or the not-yet-in-force Inter-American Convention on Protecting the Human Rights of Older Persons, June 6, 2015,OEA/Ser. P, AG/doc.5493/15 corr. 1.

100. Otherwise, a reader may wonder why a case dealing with the 2010 expulsion ofHonduran judges following the 2009 so-called coup d’etat was notified to the state a monthand a half after its lodging to the Commission, while the destitution of four judges of theConstitutional Court of that country, lodged in February 2013, still was not notified to thestate by the end of the drafting of this manuscript in February 2016. See Adan GuillermoLopez Lone et al. v. Honduras, Inter-Am. Comm’n H.R., Report No. 70/11, Petition 975-10, ¶ 5 (2011); Jose Antonio Gutierrez Navas et al., Destitucion Ilegal y Arbitraria de Magis-trados de la Sala de lo Constitucional de la Corte Suprema de Justicia de Honduras, 5 REVISTA INT’L.DERECHOS HUM. 175, 180 (2015).



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control in the style of the U.S. Supreme Court.101 If the Commis-sion decides not to make this rule more objective, it should at leastformally inform civil society and states about its intention toinclude specific types of cases among those that will benefit fromthe per saltum procedure, and publicize this position. Doing sowould create an opportunity for a transparent discussion aboutwhether the selected issues are truly the most compelling.

3. How the Per Saltum Procedure Works

The Rules of Procedure provide that the Commission “may expe-dite” assessment of the petitions—the Commission is not obligatedto make exceptions to the chronological order.102 The Commis-sion does, however, expedite its analysis of the petitions referred toin Article 29, although it is impossible to know whether this speedsup the process up by one, two, or three years.103 In other words,the Commission does not have a previously-defined procedure forprocessing per saltum petitions.104 Nevertheless, the Commissiondoes usually follow a process.105 First, when the Commissionreceives the petitions, it identifies which might be eligible for a persaltum procedure.106 Then, the Secretariat schedules an analysis ofthe petitions that were classified as eligible for a per saltum proce-dure.107 For example, it may decide that at a determined time theSecretariat will begin to analyze the per saltum petitions from theprevious year. This schedule is always subject to the Commission-ers’ decision because they can order the Registry Section to dedi-cate, for example, only twenty percent of its time to analyzingpetitions with the per saltum procedure, or to continue to analyzethe petitions in chronological order.108

101. This article does not express a position as to whether “control of the docket” is apositive or negative mechanism, but it is not permitted by the ACHR.

102. IACHR RULES, supra note 27, art. 29(2) (emphasis added). R103. See supra note 19. R104. Petitions concerning death sentences do face a more regular process and are ana-

lyzed immediately.105. See supra note 19. R106. See supra note 19.107. See supra note 19.108. See supra note 19.



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II. COMPARISON WITH THE EUROPEAN SYSTEM OF HUMAN RIGHTS

PROCEDURE

A. General Issues

It is not easy to compare the processes of the European andInter-American systems, because the European system has only acourt, while the Inter-American system has both a Commission anda Court.109 In addition, the European system does not have theequivalent of a Registry Section, where all cases are analyzed,regardless of their complexity. The ECtHR classifies all the appli-cations it receives and immediately assigns them to different judi-cial formations, either to a single judge, a committee, or achamber.110 The single judge may declare inadmissible an applica-tion that does not present a complex legal issue, and these deci-sions of inadmissibility are final.111 Committees may unanimouslyissue a decision on the inadmissibility or admissibility of an applica-tion.112 They can also unanimously rule on the merits of cases ifthe underlying question in the case is a matter of already well-estab-lished case law of the ECtHR.113 These judgments are also final.114

The chamber will decide on the admissibility or inadmissibility ofmore complex cases.115

The Secretariat of the ECtHR has legal divisions that tend todeal with cases of specific member states of the Council ofEurope.116 These divisions help the judges in their tasks. TheInter-American Commission formerly had regional sections, but nolonger does today.117 Among other duties, the ECtHR’s legal divi-

109. It was not always this way. Before Protocol 11 of the European Convention onHuman Rights (EConvHR), the European system was also a dual system. See DAVID J. HAR-

RIS ET AL., LAW OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 103 (3d ed. 2014). Nev-ertheless, there were still other differences before Protocol 11. For example, states thatwere subject to the European system did not have the obligation of accepting the individ-ual petition system. Id. at 6 n.34. In other words, it has always been difficult to comparethe two systems.

110. See European Convention for the Protection of Human Rights and FundamentalFreedoms, Nov. 4, 1950, 213 U.N.T.S. 222 arts. 27–29 [hereinafter EConvHR]; EUR. CT. OF

HUM. RTS., YOUR APPLICATION TO THE ECHR: HOW TO APPLY AND HOW YOUR APPLICATION IS

PROCESSED 6, http://www.echr.coe.int/Documents/Your_Application_ENG.pdf [https://perma.cc/48AE-DU6P] (last visited Aug. 4, 2016).

111. EConvHR, supra note 110, art. 27. R112. Id. art. 28.113. Id.114. Id.115. Id. art. 29.116. See HARRIS, supra note 109, at 112 n.50. R117. Cf. Shelton, supra note 13, at 9 (noting the inefficiency and potential for bias R

involved with regional sections); IACHR ACTIVITIES 2015, supra note 76, at 14–18 (explain- R



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sions of each country write reports that are comparable, albeit lessdetailed, to the evaluations that the Registry Section of the Com-mission writes in the Inter-American system.118 The ECtHRrequests that applications that exceed ten pages be accompaniedby a summary written by the applicant, which facilitates the task ofwriting these reports.119

To compare the Registry Section with the European system, onemust begin by distinguishing the dual function of the Registry Sec-tion of the Inter-American Commission: it is both the entity thatreceives the petitions and the entity that decides matters of inad-missibility (after a preliminary evaluation).120 Regarding the firstaspect, the Registry Section functions similarly to the ECtHR, spe-cifically the latter’s initial processes whereby cases are distributedto different judicial formations. As to its role as a decision-maker,the Registry Section’s function could be compared to the functionof the single judges and of the committees as entities that decideon inadmissibility (although the ECtHR’s decisions, unlike those ofthe Registry Section, are sometimes conveyed to the parties in rela-tively more detail).121

B. Regarding the Order of Cases

The ECtHR has a procedure similar to the Inter-American persaltum procedure. Until 2009, the ECtHR analyzed cases in chron-ological order, although it could make exceptions in very specificcases.122 Now, its regulations provide as follows:

In determining the order in which cases are to be dealt with, theCourt shall have regard to the importance and urgency of theissues raised on the basis of criteria fixed by it. The Chamber,or its President, may, however, derogate from these criteria so asto give priority to a particular application.123

The ECtHR, in addition to relying on the guidance from itsrules, has issued a document called “The Court’s Priority Policy,”

ing the new organizational structure of the Executive Secretariat to promote efficiency ofthe work of IACHR).

118. See supra note 19. R119. LEACH, supra note 53, at 28. R120. See PETITION AND CASE SYSTEM INFORMATIONAL BROCHURE, supra note 10, ¶ 38. R121. See LEACH, supra note 53, at 41. R122. See EUR. CT. OF HUM. RTS., THE COURT’S PRIORITY POLICY 1, http://www.echr

.coe.int/Documents/Priority_policy_ENG.pdf [https://perma.cc/952U-JTPF] [hereinaf-ter ECTHR POLICY].

123. EUR. CT. OF HUM. RTS., RULES OF COURT, Rule 41 (Jan. 1, 2016), www.echr.coe.int/Documents/Rules_Court_ENG.pdf [https://perma.cc/T52R-79JS].



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which gives priority to seven types of cases.124 The ECtHR should,in principle, follow this policy, even though a chamber or its Presi-dent may make exceptions.125 Nevertheless, the criterion of chron-ological order remains very important to the ECtHR.

C. The Standard for Processing Petitions and the Subsidiarity Principle

The European Convention on Human Rights (EConvHR) pro-vides that the ECtHR shall declare applications inadmissible for anumber of reasons, including if “the application is incompatiblewith the provisions of the Convention or the Protocols thereto,manifestly ill-founded, or an abuse of the right of individual appli-cation.”126 One possible interpretation of the word “manifestly”might suggest that it refers only to absurd applications. TheDepartment of the Jurisconsult of the ECtHR, however, states thatthe ECtHR’s jurisprudence gives the term a broader connotation,one that takes into account the final outcome of the case.127 TheDepartment notes that the ECtHR will consider “manifestly ill-founded” petitions that, in a preliminary examination, do notreveal a violation of the rights guaranteed by the Convention,which means that the ECtHR will declare these petitions inadmissi-ble at the outset, without formally examining their merits.128

The Department of the Jurisconsult also points out that, in orderto understand the notion of “manifestly ill-founded,” one mustbear in mind that the principle of subsidiarity is one of the funda-mental principles underpinning the Convention system.129

Indeed, this principle is recognized in many of the ECtHR’s judg-

124. The policy prioritizes, from highest to lowest, as follows: 1) “urgent” applications,where there is a particular risk to the life or health of the applicant or other serious per-sonal or family situation, such as the health of a child; 2) applications that may have animpact on the effectiveness of the system (in particular structural or endemic situationsthat the ECtHR has not yet analyzed or pilot cases) or applications raising an importantmatter of general interest, and applications submitted by one state against another; 3)applications that clearly raise issues under Articles 2, 3, 4, or 5 § 1 of the EConvHR; 4) well-founded applications based on other Articles; 5) “repetitive cases,” i.e., applications thatconcern issues already dealt with in “pilot cases”; 6) applications that have admissibilityproblems; and 7) applications that are manifestly inadmissible. ECTHR POLICY, supra note122, at 2. R

125. Id.126. EConvHR, supra note 109, art. 35(3)(a). R127. EUR. CT. OF HUM. RTS., PRACTICAL GUIDE ON ADMISSIBILITY CRITERIA 82 (2014),

http://www.echr.coe.int/Documents/Admissibility_guide_ENG.pdf [https://perma.cc/7VYV-R5BB] [hereinafter ECTHR CRITERIA].

128. Id.129. Id.



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ments.130 The Department of the Jurisconsult goes on to note thatin the particular context of the EConvHR, the subsidiarity princi-ple “means that the task of securing respect for implementing andenforcing the rights enshrined in the Convention falls first to theauthorities of the Contracting States rather than to the Court.”131

Then, citing the case Scordino v. Italy, it affirms that the ECtHR canonly intervene after domestic authorities have failed in their obliga-tions.132 Finally, the Department cites almost verbatim the judg-ment of the case Varnava and Others v. Turkey as follows:

It is therefore best for the facts of the case to be investigated andthe issues examined in so far as possible at the domestic level, sothat the domestic authorities, who by reason of their direct andcontinuous contact with the vital forces of their countries arebest placed to do so, can act to put right any alleged breaches ofthe Convention.133

Using this same understanding of subsidiarity, in Garcıa Ruiz v.Spain, the ECtHR affirmed that “it is not [the Court’s] function todeal with errors of fact or law allegedly committed by a nationalcourt unless and in so far as they may have infringed rights andfreedoms protected by the Convention.”134 In this vein, theECtHR’s Department of the Jurisconsult, in reference to inadmissi-bility on the grounds of a clear absence of a violation of the Con-vention, noted that generally only domestic courts (and someother authorities) may establish the facts of the case and the inter-pretation of domestic law, and that their findings and conclusionsin this regard are binding on the ECtHR.135 The Department ofthe Jurisconsult has further provided that it would be inappropri-ate and contrary to its subsidiary role to attempt to establish factsby embarking on fact-finding, unless there are concrete reasons todeprive domestic courts of their ability to establish the facts.136 Inrelation to the fairness of internal processes, the ECtHR has alsoaffirmed that Article 6 of the Convention protects the right to a fairhearing, but it does not establish a set of admissibility or eviden-

130. See e.g., De Souza Ribeiro v. France, 2012-VI Eur. Ct. H.R. 203, ¶¶ 67, 84 (Dec. 13,2012); Scordino v. Italy (No. 1), 2006-V Eur. Ct. H.R. 91, ¶ 140 (Mar. 29, 2006).

131. ECTHR CRITERIA, supra note 127, at 82. R132. Id.133. Id. at 82–83; see Varnava & Others v. Turkey, 2009-V Eur. Ct. H.R. 13, ¶ 164 (Sept.

18, 2009).134. Garcıa Ruiz v. Spain, 1999-I Eur. Ct. H.R. 87, ¶ 28 (Jan. 21, 1999).135. ECTHR CRITERIA, supra note 127, at 84–85. R136. See McKerr v. The United Kingdom, 2001-III Eur. Ct. H.R. 475, ¶¶ 117–118 (May

4, 2001).



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tiary rules, leaving that responsibility with national laws andcourts.137

III. ATTEMPTS TO REDUCE THE COMMISSION’S BACKLOG

A. The Commission’s Attempt to Tackle Procedural Delay

1. The Urgency of Solving the Problem

As mentioned above, the initial review process formerly tookmore than four years.138 After the initial review, the petitionsopened for processing would spend another significant amount oftime in the admissibility and merits stages. On average, the wholeprocess before the Inter-American Commission would last six and ahalf years.139 Only once the Commission has prepared a finalreport can the case be sent to the Court, which will then takenearly two years to resolve the case. This reality brings to mind themaxim “justice delayed is justice denied.” Those who obtain a posi-tive judgment likely believe that the eight-year wait is worth it, butthat probably is not the case of the vast majority of applicants whowaited about four years for the Registry Section to take a first lookat their cases, and then rejected them almost immediately. Forthose petitioners, waiting so long only to receive a terse responsecould be more disappointing than the rejection itself. For exam-ple, if a petition is rejected because it was filed on behalf of a cor-poration rather than a natural person,140 the petitioner may wellwonder why it took the Commission so long to reach such a conclu-sion and thus gave the petitioner false hope for several years.

137. Garcıa Ruiz, 1999-I Eur. Ct. H.R. at ¶ 28.138. See Juan Fernando Vera Mejıas v. Chile, Inter-Am. Comm’n H.R., Report No. 11/

13 Petition 157-06, ¶ 4 (2013).139. Dulitzky, supra note 77, at 136. R140. The Commission considers that juridical persons are not protected by the ACHR,

although it has accepted cases where corporate entities alleged violations of the AmericanDeclaration of the Rights and Duties of Man. See Rodrıguez Pinzon, supra note 21, at R13–15. The rejection of petitions presented by corporate entities might invite criticism,given that a corporation is only a mechanism for natural persons to organize themselves.Indeed, when an entity protects the rights of corporations, it is generally protecting therights of human beings. Hence, the Inter-American system should adopt a position similarto that of the ECtHR on this issue. Currently the Inter-American Court is analyzing anadvisory opinion on this matter. See REQUEST FOR AN ADVISORY OPINION BY THE GOVERN-

MENT OF THE REPUBLIC OF PANAMA 1 (Apr. 28, 2014), http://www.corteidh.or.cr/solicitudoc/solicitud_14_11_14_ing.pdf [https://perma.cc/V9MC-LCUS]. Nevertheless, manypetitions related to the right to property of corporate entities should be rejected becausethey often attempt to use the Commission as a “fourth instance” (e.g., Tabacalera Boqueron,although the Commission rejected this petition because it was lodged by a corporation).See Tabacalera Boqueron, S.A. v. Paraguay, Inter-Am. Comm’n H.R., Report No. 47/97,OEA/Ser.L/V/II.98, doc. 6 rev ¶ 25 (1997).



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Moreover, while decisions that reject a petition allow petitioners to“turn the page” and begin to look ahead, the uncertainty of waitingfor a response often generates anxiety that can compound the griefof those who believe that their rights have been violated.

The scenario described above directly contradicts the require-ment that procedures be conducted within a reasonable time,which is recognized in Article 8(1) of the ACHR.141 It is strikingthat on this issue the Inter-American system itself would fail toachieve the Convention’s standards. Faced with this reality, proce-dural delays are often blamed on the Commission’s insufficientfunds.142 This shortage of funds has become even more acute in2016.143 Of course, the Commission is not the only entity that suf-fers from economic difficulties. Indeed, the scarcity of funds is aproblem shared by most human rights organizations (includingNGOs), many of which manage to be efficient despite their lack ofresources. Given the number of years that the Commission hasclaimed that it receives insufficient funding, it should (in additionto asking for more resources) find a better and more efficient wayto act within its resources. This is not beyond the expectations ofNGOs, in comparison, or more than what the Inter-Americanhuman rights system itself requires of states that lack the resourcesnecessary to implement actions required by certain positiverights.144 If the Commission does not recognize that a lack ofresources is almost typical of organizations dedicated to humanrights, then it risks the appearance of blaming others for its ownlack of efficiency, while affecting the rights and hopes ofpetitioners.

2. Commission’s Reforms

In light of the petitions’ procedural delay, in November 2014 theCommission began a process aimed at overcoming its backlog,implementing diverse reforms that range from temporary mea-

141. ACHR, supra note 2, art. 8(1). R142. UNIV. OF TEX. SCHOOL OF LAW HUMAN RIGHTS CLINIC, supra note 18, at 4. Dulitzky R

affirms that “lack of sufficient financial resources is one of the main factors contributing tothe current situation.” Dulitzky, supra note 77, 137. R

143. See Press Release, OAS Severe Financial Crisis of the IACHR Leads to Suspensionof Hearings and Imminent Layoff of Nearly Half its Staff (May 23, 2016), http://www.oas.org/en/iachr/media_center/PReleases/2016/069.asp [https://perma.cc/Q3AS-V99S].

144. For example, the Court required Costa Rica to make in-vitro fertilization graduallyavailable at the Costa Rican Social Security Institute, without having previously assessedCosta Rican medical needs. See Artavia-Murillo et al. (“In Vitro Fertilization”) v. Costa Rica,Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 257¶ 338 (Nov. 28, 2012).



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sures to structural reforms.145 The first of these measures was tocreate the Procedural Delay Group (or GAP, its Spanish acro-nym).146 This group, arranged by three commissioners, comprisesa significant number of lawyers and staff, which is about ten per-cent of the Commission’s personnel.147 The GAP is supposed to bea temporary body, charged with analyzing petitions lodged beforethe Commission between 2009 and 2013.148 The Registry Sectionwill continue with petitions filed from 2014 onwards.149 The peti-tions that are analyzed by the GAP do not have to pass the GRAPexamination. The goal of this measure is to put an end to the Reg-istry Section’s procedural delay by the end of 2016, so that peti-tions presented in 2017 will not have to wait a long time beforeinitial review.150 According to the President of the Commission,this measure has significantly impacted the procedural backlog inthe initial review stage for petitions (although the Commission’sAnnual Report of 2015 does not seem to show significant improve-ments).151 The Commission, however, has already made the initialreview of some petitions lodged in 2014, which is animprovement.152

Another way whereby the Commission attempts to reduce proce-dural delay is through the use of interns, the number of which hasincreased to around thirty.153 The majority of them is charged withperforming the initial review of petitions, under the strict guidanceof staff lawyers and fellows.154 The number of fellows has alsoincreased to more than ten, many of whom are in charge of theinitial review of petitions.155 The Commission has also made an

145. IACHR ACTIVITIES 2015, supra note 76, at 14. R146. Alvarez Icaza Longoria Presentation, supra note 34. The existence of this section R

was registered in the Commission’s 2015 Annual Report. INTER-AM. COMM’N ON HUM.RTS., ANNUAL REPORT 2015: INSTITUTIONAL DEVELOPMENT AND ADMINISTRATIVE AFFAIRS 832(2016), http://www.oas.org/en/iachr/docs/annual/2015/doc-en/InformeAnual2015-cap6-EN.pdf [https://perma.cc/B927-ETNH].

147. Alvarez Icaza Longoria Presentation, supra note 34. R148. Id.149. Id.150. Id.151. According to Commissioner James Cavallaro, in 2015 this procedure reduced the

procedural backlog in the initial review stage for petitions by 65 percent, but the Commis-sion’s Annual Report states otherwise. Cf. PETITION AND CASE SYSTEM, supra note 17, at R63–86 with Presentation of the Annual Report of the IACHR by the President, Commis-sioner James Cavallaro, to the 46th General Assembly, available at http://www.oas.org/en/iachr/activities/speeches/15.06.16.asp.

152. See supra note 19. R153. Alvarez Icaza Longoria Presentation, supra note 34. R154. Id.155. Id.



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effort to use joinder of petitions, thus consolidating many—evenhundreds of—similar cases.156 It is also trying to reduce the com-plexity and length of the reports of initial review, admissibility, andmerit.157 Yet another reform is the above-mentioned IndividualPetition System Portal, which streamlines the petition submissionand review processes.158

Probably the most relevant change involves the modification ofthe inner structure of the Secretariat of the Commission. The Sec-retariat formerly analyzed cases—once the cases had passed the ini-tial review—in sub-regional groups (e.g., Andean Region I, AndeanRegion II, Mesoamerica, etc.).159 It also played a central role in theGRAP.160 This working division has since been abolished.161 TheCommission made this change taking into account that some previ-ously existing divisions that were not based on geography and hadsome dealings with petitions (Register Section and Protection Sec-tion) were efficient in their task. Accordingly, the Commissionreplaced the sub-regional groups with two sections, the PetitionsSection and the Cases Section.162 The former deals with admissibil-ity; the latter is divided into the Merits Group and the CourtGroup, which both work with admitted cases.163

It is praiseworthy to see the Commission making real efforts toend its procedural delay. Hopefully, these reforms will reduce thelength of the initial review process. However, it is doubtful that theCommission will make a relevant change in the petitions proce-dure as a whole. While the changes will lessen backlogs in the pro-cess of initial review, it is foreseeable that the bottleneck thatformerly existed at this stage will simply shift to the admissibility ormerits stage of cases. In fact, procedural delay not only affects theinitial review process; it also impacts the cases that have beenapproved for processing, because the number of cases that havealready passed through the initial review to the admissibility and

156. Id.157. Id.158. See Press Release, supra note 29. R

159. The former structure can be seen in Inter-Am. Comm’n on Hum. Rts.,ORGANIGRAMA (2012), http://www.oas.org/es/cidh/docs/pdfs/Span_CIDH_Org_11Oct2012%20v1.pdf [https://perma.cc/9XLH-DC7B].

160. See supra note 19. R

161. IACHR ACTIVITIES 2015, supra note 76, at 14–15. R

162. Alvarez Icaza Longoria Presentation, supra note 34. R

163. IACHR ACTIVITIES 2015, supra note 76, at 15. This latter group already existed, Rand deals with cases that have already been sent to the Inter-American Court.



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merits review stages has grown consistently since 2000.164 Moreo-ver, the shift of the bottleneck creates additional difficulties,because initial review is simpler, while the admissibility and meritsdecisions require more in-depth analysis and complex procedure.These decisions require following a procedure that involves theparticipation of states and the preparation of more detailed reportsthan those used in the initial review. This is why the best way ofsolving the problem of procedural delay is establishing a higherregard for the principle of subsidiarity, so as to give more defer-ence to domestic decisions.

B. A Subsidiarity-Based Proposal for Reducing the Backlog

1. Preliminary Issues

This Article argues that a practical acknowledgement of theCommission’s subsidiary role would lighten the institution’s wor-kload. This would, in turn, contribute greatly to resolving the pro-cedural delays affecting the Commission’s petition system. Tounderstand this proposal, it is necessary to refer to the principle ofsubsidiarity more broadly. According to a former president of theCommission, Paolo Carozza, the principle of subsidiarity could besimply defined as “the principle that each social and politicalgroup should help smaller or more local ones accomplish theirrespective ends without, however, arrogating those tasks toitself.”165 The subsidiarity principle is implicit in the Preamble ofthe ACHR,166 and in various legal institutions and rules in the sys-tem, such as the need to exhaust domestic remedies before resort-ing to the Commission.167 The principle has been recognized bythe Inter-American Commission and Court on several occasions.168

164. PETITION AND CASE SYSTEM, supra note 17, at 73. In 2000, there were 930 cases at Rthis stage of the proceedings, whereas in 2015 there were 1,903. Id. The sole exception tothis growth was between 2014 and 2015 (in 2014 there were 1,955 cases). Id.

165. Paolo G. Carozza, Subsidiarity as a Structural Principle of International Human RightsLaw, 97 AM. J. INT’L. L. 38, 38 n.1 (2003).

166. The Preamble specifies that the protection offered by the ACHR is “reinforcing orcomplementing the protection provided by the domestic law of the American states.”ACHR, supra note 2, pmbl. R

167. From its first decision on the merits, the Inter-American Court recognized thecomplimentary role of the IACHR. Velasquez-Rodrıguez v. Honduras, Merits, Inter-Am.Ct. H.R. (ser. C) No. 4, ¶ 61 (July 29, 1988).

168. The Commission has recognized this principle in various reports that discuss thedoctrine of the fourth instance. See Argentina, Case 11.673, Inter-Am. Comm’n. H.R.,Report No. 39/96, OES/Ser.L/V/II.95, doc. 7 rev. ¶¶ 48–49 (1996); Oscar Cedeno Gonza-lez v. Costa Rica, Inter-Am. Comm’n H.R., Report No. 86/03, OEA/Ser/JL/V/II.118, doc.70 rev. 2, Petition 116/2001, ¶¶ 30–31 (2003). The Court has recognized this principle(although it has not always understood it properly). See, e.g., Tarazona-Arrieta et al. v.



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The subsidiarity principle would require acknowledgment thatthe state is the first entity that is required to resolve human rightsissues. Moreover, it is often the entity best prepared to do so. TheCommission could recognize the subsidiary paradigm by setting ahigher standard of proof for processing petitions and by establish-ing the requirement that domestic remedies be exhausted beforethe petition is submitted to the Commission. Such recognitionwould reduce the procedural backlog in the Registry Section, as itwould result in the refusal of many petitions that are simply seek-ing to evade a state’s decision or attempting to use the Commissionas a new opportunity to appeal an adverse national decision.

If the Commission were to accept this Article’s recommenda-tions, then many cases would be quickly rejected. Of course, thoseworking in the Commission’s Secretariat will not be keen to acceptthat result, because they would like to help resolve the problems ofall those who appear before the system. It is necessary, however, tounderstand that the Commission, by its very nature, is neithermeant nor able to resolve all the requests of those who lodge peti-tions. The only result of trying to analyze in detail all the casessubmitted to the Commission will be to maintain the current pro-cedural delay either in the Registry Section (during the initialreview process), in the Petition Section, or in the Cases Section (ifa greater number of cases are opened for processing). Only bytaking radical measures will the Commission stop contributing tothe infringement of a petitioner’s right to a hearing within a rea-sonable time. And only then will thousands of people no longer besubjected to prolonged uncertainty.

2. Subsidiarity and Fourth Instance

As noted above, the Commission has explicitly recognized thesubsidiarity of the Inter-American system. It has also acknowledgedthis principle by its use of the term “complementary,”169 which it

Peru, Preliminary Exception, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C)No. 286, ¶ 137 (Oct. 15, 2014); Atala-Riffo & Daughters v. Chile, Merits, Reparations andCosts, Inter-Am. Ct. H.R. (ser. C) No. 239, ¶ 65 (Feb. 24, 2012); Artavia-Murillo et al. v.Costa Rica, Preliminary Objections, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser.C) No. 257, ¶ 135 (Nov. 28, 2012); Rıos et al. v. Venezuela, Preliminary Objections, Merits,Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C) No. 194, ¶ 53 (Jan. 28, 2009); Interpre-tation of the American Declaration of the Rights and Duties of Man within the Frameworkof Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89,Inter-Am. Ct. H.R., (ser. A) No. 10, ¶ 37 (July 14, 1989).

169. Juan Fernando Vera Mejıas v. Chile, Inter-Am. Comm’n H.R., Report No. 11/13,Petition 151/06, ¶ 25 (2013).



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considers to be a synonym of “subsidiary.”170 Additionally, theCommission has theoretically recognized the principle of sub-sidiarity by referring to the doctrine of fourth instance on manyoccasions.171 This doctrine states that it is not the Commission’srole “to act as a quasi-judicial fourth instance . . . to review theholdings of the domestic courts of the OAS member states.”172

The formula of the fourth instance, too, is “consistent with thepractice of the European human rights system.”173

Despite the use of this doctrine, the Commission tends to makeambiguous statements about its own powers and does not recog-nize any clear limit to its review of national judgments. Such ambi-guity arises when the Commission claims to be competent “todeclare a petition admissible and rule on its merits,” such as “whenit [claims that] a domestic legal decision constitutes a disregard ofthe right to a fair trial, or if it appears to violate any other rightguaranteed by the Convention.”174

This statement may be understood in various ways. On onehand, it could be read as requiring that the violation be manifest.On the other hand, it might be read as suggesting that it is suffi-cient for the Commission to review a domestic decision if thereexists a slight indication that the decision affects a human right. Areading that does not give deference to the findings of fact and lawof national courts would be problematic because almost all trials,to a greater or lesser extent, have a human rights component.175

For example, a judgment granting the payment of money that isless than the amount owed, either through error or improperinterpretation of national law, could affect the property rights—a

170. Oscar Cedeno Gonzalez, Inter-Am. Comm’n H.R., Report No. 86/03, ¶ 30.171. See infra notes 172, 173. R

172. Jamaica, Case 9260, Inter-Am. Comm’n. H.R., Report No. 29/88, OEA/Ser.L/V/II.74, doc. 10 rev.1, ¶5 (1988). This may have been the first petition that dealt with thefourth instance doctrine. Argentina, supra note 167, ¶ 52. R

173. Argentina, Inter-Am. Comm’n H.R. Report No. 39/96, ¶ 50; see also id. ¶¶ 57, 59,68, 69.

174. Narciso Palacios v. Argentina, Case 10.194, Inter-Am. Comm’n. H.R., Report No.105/99, ¶ 45 (1999).

175. Both the American Declaration of the Rights and Duties of Man and the ACHR—but particularly the former—deal with a wide range of issues that could be the object ofordinary litigation. For instance, labor law relates to the “right to work and to fair remu-neration” (Article XIV of the American Declaration of the Rights and Duties of Man,OEA/Ser.L./V.II.23, doc. 21, rev. 6 (1948)), and family law relates to the rights of thefamily (Article 17 of the ACHR) and the rights of the child (Article 19 of the ACHR).



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human right—of the alleged victim.176 It would be wrong, how-ever, to understand that a dispute of this nature would have suffi-cient basis to be processed in the Inter-American system. Thiswould imply that the Commission acts as an appellate court, whichwas not the intent of the states that created the institution. A sim-ple judicial error in assessing the facts or in interpreting a just law,therefore, is not sufficient grounds to appear before the Inter-American Commission. If it were, that would contradict the subsid-iary character of the system.

Perhaps the main difference between the way cases are handledin the Inter-American and European systems relates to the trustplaced in national courts, the standard of review applied to theirdecisions, and the application of the fourth instance doctrine. Allof these issues are closely linked. Faced with the issue of sub-sidiarity and the question of how much confidence to have in thedecisions of national courts, which are the first guarantors ofhuman rights, the ECtHR seems to begin with the assumption thatstate institutions have acted properly.177 In a sense, this approachis analogous to the presumption of the regularity and validity ofacts (omnia rite acta praesumuntur) that exists in international law.178

Some argue that the Inter-American system could not begin withsuch an assumption, because the legal systems of the Americas areless developed than those in European countries.179 The basis ofthis claim, however, is an outdated vision of the European systemthat overlooks that nearly half of present democracies in the Coun-cil of Europe are more recently-established than democracies inthe Americas, and many of them have human rights problems thatare more serious than those of the OAS system.180 Moreover, if thejudiciaries of particular states in the Americas were to have seriousproblems or become corrupted (as might happen in a dictator-ship), the Commission could always take that fact into considera-

176. The American Declaration of the Rights and Duties of Man and the ACHR bothrecognize the right to property. American Declaration of the Rights and Duties of Man,supra note 175, art. XXIII; ACHR, supra note 2, art. 21. R

177. See supra notes 172, 173. R178. See BIN CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL COURTS

AND TRIBUNALS 305 (Cambridge Univ. Press ed. 2006) (1953).179. ANTONIO AUGUSTO CANCADO TRINDADE, EL DERECHO INTERNACIONAL DE LOS DER-

ECHOS HUMANOS EN EL SIGLO XXI, 389–90 (2d ed. 2006).180. See James L. Cavallaro & Stephanie Erin Brewer, Reevaluating Regional Human

Rights Litigation in the Twenty-First Century: The Case of the Inter-American Court, 102 AM. J.INT’L. L. 768, 773–774 (2008).



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tion as an exceptional circumstance181 and presume that the casewould require a more in-depth analysis. What the Commission can-not do is assume that all domestic judicial systems suffer from seri-ous problems that prevent them from carrying out justice, becausethe vast majority of national judges in the Americas want—andcan—adjudicate according to the rule of law. Indeed, most courtdecisions at national level are respectful of human rights. This isreflected in the high number of cases that the Commission refusesto open for processing and the vast number that are neverpresented to the Commission. It is reasonable, therefore, for theCommission to give deference to domestic judicial processes, asdoes the ECtHR.

3. Deference to National Decisions

A way of implementing the principle of subsidiarity would be forthe Commission to recognize that, if there has been a judgment atthe national level in a case involving violations of human rights,likely the matter has been properly addressed by the domestic insti-tution (except for those cases where the Commission is aware thatthe judiciary suffers from a serious institutional problem). If therehas been a process at the national level that has ruled out theoccurrence of a violation, therefore, the Commission shouldrequire the petitioner to prove a prima facie case of violationbefore opening the petition for processing.182 This would be con-sistent with some of the Commission’s practices: the Commissionhas said it must examine prima facie whether the allegations of thepetitioners reveal an apparent or potential violation of a rightenshrined in the ACHR.183 Indeed, statements from the peti-tioner, however plausible they might be, should not be sufficientgrounds to process a petition that has been rejected at the nationallevel. The petitioner should include background information andevidence that shows why the state has likely violated his or herhuman rights. Moreover, the Commission should open a petitionfor processing only if the petitioner shows, meeting the standard of

181. The Commission has affirmed that it could use different standards depending onthe type of right that is affected. See Rodrıguez Pinzon, supra note 21, at 12. R

182. This requirement is similar to the “evidentiary burden” in the Anglo-Saxon sys-tem, that is, the burden of proof that “obliges a party to adduce sufficient evidence for theissue to go before the tribunal of fact.” ADRIAN KEANE, THE MODERN LAW OF EVIDENCE 74(5th ed. 2000).

183. See M.P.C. & Family Members v. Peru, Inter-Am. Comm’n H.R., Report No. 149/10, Petition 1147-05, ¶ 38 (2010); see also Jose Delfın Acosta Martınez & Family Members v.Argentina, Inter-Am. Comm’n H.R., Report No. 36/13, Petition 403-02, ¶ 43 (2013).



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proof of preponderance of evidence, that a state may have violateda human right. This general statement is subject to a few caveatsthat would mitigate its stringency. To begin, as mentioned above,it should be possible for the Commission to relax this standardwhen there are serious problems with a state’s judiciary system. Asecond caveat is that the Commission could believe that a differentstandard is necessary to decide whether to open the petition forprocessing, depending on the type of violation in question.184 If,for example, the petition relates to the right to life or to the arbi-trary expulsion of judges, the Commission could apply a “standardof possibility” that the violation has occurred.

This solution is consistent with the regulatory standards of theCommission. Indeed, Article 34(b) of the Commission’s Rules ofProcedure—based on Article 47(1)(c) of the ACHR—providesthat a petition be declared inadmissible when “the statements ofthe petitioner or of the State indicate that it is manifestly ground-less or out of order.”185 Again, a reading of the word “manifestly”in isolation might suggest that the rule requires a petition to bealmost absurd to be rejected. This, however, is not the case, as thecomparison with the ECtHR described above makes clear.186 Inlight of the principle of subsidiarity, if a person brings before theCommission a complaint against a judicial interpretation, such aclaim would be manifestly groundless or obviously out of order,unless there is a clear arbitrariness in the institution’s decision-making or the decision is based on a law that is openly contrary tothe ACHR. On this point, it is worth noting that in addition toinadmissibility on the grounds that a petition is manifestly ill-founded, the ECtHR rejects petitions that are not substantiated.187

Faced with the paradigm shift that this Article recommends,some might worry that the effect of implementing this changewould be that the Commission would fail in some cases to recog-nize the violations that have occurred. This is an understandableobjection, but it is worth noting that mistakes always happen bothin the state’s favor and in favor of the petitioner.188 Inter-Ameri-

184. Rodrıguez Pinzon affirms that the Commission uses a stricter standard to reviewpetitions that deal with certain rights. See Rodrıguez Pinzon, supra note 21, at 12. R

185. The ACHR provides in Article 47(c) the following: “[T]he statements of the peti-tioner or of the state indicate that the petition or communication is manifestly groundlessor obviously out of order.” ACHR, supra note 2, art. 47(c). R

186. See supra Section II.C.187. ECTHR CRITERIA, supra note 127, at 87–88. R188. Indeed, there have also been cases in which the Inter-American system has

declared that there were human rights violations when, in fact, there were no violations,



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can organizations, like any other institution that must adjudicatecases, are not infallible. This has been acknowledged by the Com-mission itself when it held that the right to judicial protection, asrecognized in the Convention, includes the “the right to fair,impartial and prompt proceedings which give rise to the possibility,but never the guarantee, of a favorable outcome.”189 In thisregard, the Commission cannot be responsible for things that arebeyond its power—it cannot be responsible for never making a mis-take—but it is responsible for its own delays in handling cases andfor the anxiety that this delay causes petitioners. These problemscould be alleviated if the Commission did not open many morepetitions for processing than it could reasonably manage, which isthe issue at the heart of the Commission’s need to recognize thesubsidiarity paradigm in its practice.

4. Outright Rejection of Petitions that Do Not ExhaustDomestic Remedies

Finally, another manifestation of the principle of subsidiarity inthe ACHR is the requirement that in order to access the system,petitioners must show that “remedies under domestic law havebeen pursued and exhausted in accordance with generally recog-nized principles of international law.”190 The Commission statesthat the effect of this standard is “to assign to the jurisdiction of theCommission an essentially subsidiary role.”191 The Court also rec-ognizes that this standard results from the notion that interna-tional jurisdiction “reinforces or complements” domesticjurisdiction.192 Requiring the petitioner to exhaust the remediesprovided by national law is nothing more than a recognition thatthe state is the first entity responsible for resolving allegations ofhuman rights violations.193 This requirement would also acknowl-

for example, in relation to the error in the identification of some people as victims of amassacre. See Mapiripan Massacre v. Colombia, Monitoring Compliance with Judgment,Order of the Court, “Considering,” ¶¶ 18, 24, 30, 34, 38, 44 (Inter-Am. Ct. H.R. Nov. 23,2012), https://www.oas.org/es/cidh/decisiones/2014/MXIN1352-06y580-07ES.docx[https://perma.cc/UQA4-KZAP].

189. Narciso Palacios v. Argentina, Case 10.194, Inter-Am. Comm’n H.R. Report No.105/99, ¶ 56 (1999).

190. ACHR, supra note 2, art. 46(1)(a). R191. Argentina, Case No. 11.673, Inter-Am. Comm’n H.R. Report No. 39/96, ¶ 49

(1996) (quoting Annual Report of the Inter-American Commission on Human Rights1988–1989, Case 10.208, Inter-Am. Comm’n H.R., Resolution No. 15/89, OEA/Ser.L/V/II.76, doc. 10 100, ¶ 5 (1989)).

192. Velasquez-Rodrıguez v. Honduras, Merits, Inter-Am. Ct. H.R. (ser. C) No. 4, ¶ 61(2003).

193. See ACHR, supra note 2, art. 46(1)(a). R



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edge that it is preferable for such claims to be resolved at thenational level. Requiring full compliance with the legal norms onthis issue would give the principle of subsidiarity a practical effect.

Despite the ACHR’s requirement of exhaustion of domestic rem-edies before the applicant files a petition, petitions are oftenlodged to the Commission while state judicial proceedings are stillin process, in anticipation of domestic remedy exhaustion duringthe time petitioners wait for Registry Section review. The positionof the Commission in such situations is to consider these petitionsas acceptable, provided that domestic remedies have in fact beenexhausted before the Registry Section analyzes the petition (irre-spective of whether the Commission was duly informed of theongoing domestic proceedings).194 In some decisions, such as itsrecent 2016 judgment in Duque v. Colombia, the Court has endorsedthe Commission’s position.195 Judge Vio Grossi, however, has criti-cized this position in some of his dissenting opinions.196

The Court’s endorsement is somewhat based on the distinctionbetween the decision of the initial review and the admissibility deci-sion.197 The problem with this distinction is, as previously stated,the initial review decision is a statement regarding admissibility,even if the Commission does not explicitly refer to it as such.198

According to Article 48(1) of the ACHR, the Commission does nothave the power to refuse the analysis of a petition, unless it is inad-missible.199 Nevertheless, the decisions of the Inter-AmericanCourt that endorse the Commission’s interpretation do not settlethis issue, partly because the Court has often modified its own caselaw.200 In addition, it is the Commission itself that decides themoment when remedies have been exhausted; the Court cannotorder the lodging of petitions that the Commission consideredinadmissible.

194. See Wong Ho Wing v. Peru, Preliminary Objections, Merits, Reparations, andCosts, Inter-Am. Ct. H.R. (ser. C) No. 265, ¶ 19 (Aug. 22, 2013).

195. Duque v. Colombia, Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 310, ¶ 42 (Feb. 26, 2016).

196. Dıaz-Pena v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs,Inter-Am. Ct. H.R. (ser. C) No. 244 (June 26, 2012); Wong Ho Wing, Inter-Am. Ct. H.R. (ser.C) No. 265.

197. Wong Ho Wing, Inter-Am. Ct. H.R. (ser. C) No. 265, at ¶ 26; Duque, Inter-Am. Ct.H.R. (ser. C) No. 310, at ¶ 42.

198. See supra note 19. R

199. See ACHR, supra note 2, art. 48(1)(a). R

200. See Alvaro Paul, Decision-Making Process of the Inter-American Court: An AnalysisPrompted by the “In Vitro Fertilization” Case, 21 ILSA J. INT’L. & COMP. L. 87, 92 n.28 (2014).



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The current practice of the Commission regarding the exhaus-tion of domestic remedies is the following: when applicants submitto the Commission petitions that do not demonstrate exhaustionof domestic remedies, the Commission evaluates them in the sameway it reviews other petitions and determines if they meet theadmissibility requirements.201 Since the Commission cannot knowwhether domestic remedies have been exhausted from themoment when the case was first submitted, it requests informationon the point.202 Then, it analyzes the new information.203 Theseacts represent an administrative cost to the Commission, and pro-vide an incentive for the petitioners to submit the petition beforedomestic remedies have been exhausted. Indeed, this tactic wouldexpedite—if one can use the expression in the context of suchlong delays—the Commission’s review of the petition, because peti-tioners could carry on with the last stage of domestic procedures,trusting that they will be exhausted during the years in which thepetition awaits initial review.204

The presentation of petitions that have not exhausted domesticremedies is clearly inappropriate. Indeed, it not only violates theACHR admissibility requirement that gives effect to the principleof subsidiarity, but it also burdens the system with cases that couldbe addressed by the judicial remedies of the state. Moreover,despite the petition’s failure to comply with the exhaustion ofdomestic remedies requirement, the Commission will have toreview the petition, inquire about the progress of domestic reme-dies, and communicate the decision to the petitioner. It wouldhave to do this, despite the fact that in many cases the result of theCommission’s process will only lead to discovery that the matterhas been resolved in favor of the alleged victim at the nationallevel.

Given that the practice of accepting such petitions creates a per-verse incentive for petitioners to submit cases to the Commissionbefore they have exhausted domestic remedies, the Commissionshould not open petitions for processing if they do not appear to

201. See supra note 19. R202. Requesting information regarding the exhaustion of domestic remedies is a habit-

ual practice of the Commission for petitions that include little information on the issue.See, e.g., Juan Fernando Vera Mejıas v. Chile, Inter-Am. Comm’n H.R., Report No. 11/13,Petition 157-06, ¶ 4 (2013). In this case there were no pending domestic processes, butthere was a failure to exhaust domestic remedies. Id. ¶ 2.

203. See supra note 19. R204. In the worst-case scenario, the petition could be presented again after domestic

remedies have been exhausted.



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have exhausted domestic remedies before being submitted. It isworth clarifying that this proposal would not apply to cases forwhich Article 46(2) of the ACHR makes exceptions to the require-ment of exhaustion of domestic remedies, such as when nationalcourts are not independent, or when there have been excessivedelays in the conduct of the trial. However, these circumstanceswould have to be expressly alleged by the petitioner.

For its part, the ECtHR is not strict on this issue. In principle,the question of whether domestic remedies have been exhausted isdetermined at the time of the application’s submission.205 TheECtHR allows exceptions to this rule, however.206 Indeed, theECtHR has affirmed that it accepts applications when the judg-ment in the last domestic judicial stage was issued shortly after thesuit’s filing, provided that this occurs prior to the time that theECtHR rules on the application’s admissibility.207 Nevertheless,this approach is still stricter than the current practice of the Inter-American Commission, because it requires domestic remedies tobe exhausted shortly after the filing of the petition and does notallow petitioners to “expedite” the initial review of their petition byseveral years. In addition, the ECtHR requires the applicant toinform the court about exhaustion of domestic remedies before itsreview, so that the ECtHR does not have to request additionalinformation on the applicant’s exhaustion of domesticremedies.208

CONCLUSION

The initial review process is often unfamiliar to both those whoappear before the Inter-American system for the first time, andthose who study it in a purely scholarly manner. This Articleexplains how the initial review process works and contrasts it withthe equivalent procedure in the ECtHR. In doing so, it dissects theserious problem of procedural delays that currently afflicts theInter-American Commission’s initial review process. This Articlealso refers to the relevant changes that the Commission maderecently in order to improve its decision-making process. It also

205. Baumann v. France, App. No. 33592/96, 2001-V Eur. Ct. H.R. 207, ¶ 47 (May 22,2001).

206. Id.207. Karoussiotis v. Portugal, App. No. 23205/08, 2011-II Eur. Ct. H.R. 15, ¶ 57 (Feb. 1,

2011). This approach is echoed by the Department of the Jurisconsult of the ECtHR in itsdocument on the admissibility criteria used by the Court. See ECTHR CRITERIA, supra note127, at 27. R

208. See LEACH, supra note 53, at 27, 28, 126. R



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argues that one way to tackle this problem is to give practical recog-nition to the subsidiarity principle that shaped the Inter-Americanhuman rights system. We must move away from the current para-digm—in which it seems that the Commission exists to analyzeevery allegation of human rights violations—towards a more selec-tive paradigm that recognizes the primary responsibility for resolv-ing these abuses lies with the state and its national judicial system.

Based on the new paradigm, this Article recommends that theCommission adopt an approach similar to that of the ECtHR,which recognizes that national courts are free to determine thefacts and interpret the laws of their countries, unless those determi-nations or interpretations openly violate the EConvHR. As a resultof the understanding that the international system should act onlyin exceptional cases, the ECtHR considers that it is the petitionerwho must prove prima facie that they have been the victim of aviolation. Some say that the ECtHR’s approach could not beapplied in the Americas because European domestic courts have agreater level of development than those in the Americas. Thisargument, however, is not compelling, as many American countrieshave strong and independent courts, and many European states(particularly some of the new European democracies) have preca-rious legal systems and serious human rights problems. It is truethat there is a real difference between the regions, but is not asradical so as to flatly rule out the use of solutions developed inEurope.

A second way of implementing the principle of subsidiarity thatundergirds the Inter-American Human Rights system would be togive full effect to the provisions of Article 46(1), which requirespursuing and exhausting domestic remedies prior to lodging apetition before the Commission. This would prevent the systemfrom being overloaded with petitions that are still active at thenational level or that will likely be favorably resolved by the state’scourts as they await their proceedings before the Commission.This would also prevent the Registry Section from reviewing peti-tions that will be discarded as soon as new information about itsprocess at the national level is submitted. These modificationscould sharply reduce the number of cases pending before theoverburdened Commission, allowing the institution to avoidinfringement upon the essential human right to have grievancesaddressed within a reasonable time.