on Human and Peoples’ Rights v Libya, Merits, Application 002/2013, 3 June 2016,
paras 68-70). An exemption to the rule of exhaustion of local remedies is when such
remedies are unduly prolonged. In Zongo, the Court held that the ‘local judicial
procedure’ should be calculated from the date of the start of investigations, 13
December 1998, to the close of the procedure with the expiry of the deadline for
appeal to the cour de cassation, 21 August 2006. The Court held that this procedure
was unduly prolonged and that there was therefore no need for the applicant to
approach the cour de cassation as would otherwise have been required. (Beneficiaries
of late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo and Blaise
Ilboudo & The Burkinabe human and peoples’ rights movement v Burkina Faso,
application 013/2011, judgment, 28 March 2014).
A local remedy would not be deemed to have been unduly prolonged if there is a
justifiable reason for prolonging the case, such as a country in the middle of a civil
war which adversely affects the functioning of the judiciary or delays caused by the
victim or her family (Wilfred Onyango Nganyi & 9 others v Tanzania v The United
Republic of Tanzania, application 006/2013, judgment, 18 March 2016, para 91). The
frustration of applicant with the procedure of the local courts could not excuse his
failure to exhaust local remedies (Peter Joseph Chacha v The United Republic of
Tanzania, application 003/2012, judgment, 28 March 2014, para 145). Where the
average duration of cases is two years and two months, local remedies may not be
considered as unduly prolonged (Chacha v Tanzania para 148).
In a dissenting opinion by three judges in Chacha v Tanzania, the minority held that
the point in time from which the court ought to consider whether or not there has been
undue delay in accessing local remedies is the time where the victim attempts to
enforce his human rights through the courts. The fact that the cases are dismissed due
to technicalities do not prevent the time from running.
In the context of human rights protection, the rule regarding the exhaustion of local
remedies should be applied with a certain degree of flexibility and without excessive
formalism (Chacha). With regards to the rule of exhaustion of local remedies,
consideration must be given not only to theoretical remedies in the domestic system,
but also to the general legal and political context as well as the personal situation of
the applicant (Chacha). In some case, the burden of proof regarding the exhaustion of
local remedies must be distributed equally between the parties to the case (Chacha).