-21 75.
In its Response, the Respondent State also objects to the admissibility of
the Application for failing to exhaust local remedies.
76.
The records show that, the Applicant does not dispute the fact that he has not
exhausted all the local remedies available within the Burkinabe legal system.
The
matter in contention between the Parties however lies on the one hand, in ascertaining
if the duration of proceedings at the Cour de Cassation in Burkina Faso may be
considered as unduly prolonged within the meaning of Articles 56 (5) of the Charter
and Rule 40 (5) of the Rules; and on the other hand, to know whether remedy at the
Cour de Cassation, neglected by the Applicant, was available, effective and sufficient.
a). General Observations
77.
The first limb of the phrase of this Rule provides that [the Application] "be filed
after exhausting local remedies" and the second "... unless it is obvious that this
procedure is unduly prolonged." The Court notes that in addition to this exception,
there are other criteria listed by the Commission and other international human
rights courts based on the criteria of availability, effectiveness and sufficiency of
local remedies. The Court will come back to the details of these criteria.
78.
The rule regarding the exhaustion of local remedies prior to referral to an
international
internationally
human
5
.
rights
court is one that is
recognized
and
accepted
Referral to international courts is a subsidiary remedy compared to
remedies available locally within States. The Commission has so underscored in
several of its decisions
79.
For instance, in its consideration of the Communication: Zimbabwe Lawyers for
Human Rights & Associated Newspapers of Zimbabwe v. Zimbabwe, it states that:
"It is a well-established rule of customary international law that before international
5
See European Convention on the Protection of Human Rights and Fundamental Freedoms (Article 35 (1)),
American Convention on Human Rights (Article 46 (l)(a)), Optional Protocol to the Covenant (Article 5 (2) (b)).
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