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Unreasonable delay in filing the applications – article 56(6)

Commentary

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Unreasonable delay in filing the applications – article 56(6)

Commentary

Commentary type: Procedure

Procedure: Admissibility

Admissibility: Unreasonable delay in filing the applications – article 56(6)

Commentary: The reasonableness of timelines for referral of cases to the Court depends on the circumstances of each case and must be determined on a case-by-case basis (Zongo & Others v Burkina Faso, Preliminary Objections, Application …, 21 June 2013 para 121; Abubakari Mohamed v The United Republic of Tanzania, Merits, Application 007/2013, 3 June 2016 para 91).

The Court considers that there is no undue delay where local circumstances warranted the applicant to wait for almost a year before lodging the communication before the Court. To the court, waiting for one year before bring the application was not an inordinate delay because the applicant was entitled to await Parliament’s reaction to the judgment (Tanganyika Law Society, The Legal and Human Rights Centre v The United Republic of Tanzania, application 009/2011; Reverend Christopher R. Mtikila v The United Republic of Tanzania, application 011/2011, judgment, 14 June 2013, para 83).

Where an applicant has exhausted local remedies and the respondent state later makes a declaration under article 34(6) allowing individual access, the reasonable time for submission of application to the Court should be counted from the time of the declaration. (Alex Thomas v United Republic of Tanzania, application 005/2013, judgment, 20 November 2015, para 73; Abubakari Mohamed v The United Republic of Tanzania, Merits, Application 007/2013, 3 June 2016 para 89). A delay of three years and five months after declaration for an incarcerated person to approach the Court was not considered unreasonable considering among other problems for the applicant in accessing court records (Thomas para 74).

The fact that an applicant is indigent, illiterate, imprisoned, not represented by a lawyer and not provided legal aid by the respondent state must justify the Court assessing flexibility of timeline for seizure of the Court (Abubakari Mohamed v The United Republic of Tanzania, Merits, Application 007/2013, 3 June 2016 para 92). A delay of 3 years, 3 months and 10 days is not unreasonable give the circumstances of the applicant ( Abubakari paras 90, 92 & 93).

Primary Documents

Unreasonable delay in filing the applications – article 56(6).pdf
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013/2011 Beneficiaries of late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo and Blaise Ilboudo & The Burkinabe human and peoples’ rights movement v Burkina Faso - (Judgment)

121. In their response on the merits, the Applicants sought to show that justice had been impeded by the Executive through the Prosecutor of Faso. In that regard, they emphasize the fact that "the Prosecutor of Faso, as a judicial officer 'comes under' the supervision and control of his hierarchical superiors and under the authority of the Minister of Justice, a situation which imposes on him the obligation to be loyal to his superiors".

Contentious cases

007/2013 Mohamed Abubakari v United Republic of Tanzania

91. As the Court noted in a previous case, " ... the reasonableness of the timeline for referrals to it depends on the circumstances of each case and must be assessed on case-by-case basis."

Contentious cases

009/2011 & 011/2011 Tanganyika Law Society, The Legal and Human Rights Centre v The United Republic of Tanzania and Reverend Christopher R. Mtikila v The United Republic of Tanzania

83.Alleged delay in filing the applicationsThe Court agrees with the applicants that there has not been an inordinate delay in filing the applications; because after the judgment of the Court of Appeal, the Applicants were entitled to wait for the reaction of Parliament to the judgment. In the circumstances, the period of about three hundred and sixty (360) days, which is about one year from the date of the judgment of the Court of Appeal until the applications were filed was not unreasonably long.

Contentious cases

005/2013 Alex Thomas v United Republic of Tanzania

73. On the preliminary objection that the Applicant did not file the application within a reasonable time from the time local remedies were exhausted, the Court finds that in considering whether the application was filed within a reasonable time, time should have started running from 29 May 2009 when the Court of Appeal dismissed the Applicant's appeal. However, the Respondent deposited its declaration under Article 34(6) of the Protocol on 29 March 2010, therefore the time should be reckoned from that date. This Court has, in Application 01312011 Beneficiaries of the late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo and Blaise 1/boudo & The Burkinabe Movement on Human and Peoples' Rights v Burkina Faso (Ruling on Preliminary Objections of 21 June 2013) set out the principle that, "the reasonableness of a time limit of seizure will depend on the particular circumstances of each case and should be determined on a case by case basis".

Contentious cases

007/2013 Mohamed Abubakari v United Republic of Tanzania

89. In the opinion of the Court, it is appropriate to take into account not only the date on which the Respondent State became a Party to the Protocol, but also and above all, with regard to an Application from an individual, the date on which that State filed the declaration accepting the competence of the Court to receive cases from individuals within the meaning of Article 34(6) of the Protocol. The records however show that the United Republic of Tanzania deposited the said declaration on 29 March 2010. In the view of the Court, it is from that date that the date of seisure has to be calculated

Contentious cases

005/2013 Alex Thomas v United Republic of Tanzania

74. Considering the Applicant's situation, that he is a lay, indigent, incarcerated person, compounded by the delay in providing him with Court records, and his attempt to use extraordinary measures, tha~ is, the application for review of the Court of Appeal's decision, we find that these constitute sufficient grounds to explain why he filed the Application before this Court on 2 August 2013, being three (3) 30 0 years and five (5) months after the Respondent made the declaration under Article 34(6) of the Protocol. For these reasons, the Court finds that the application has been filed within a reasonable time after the exhaustion of local remedies as envisaged by Article 56(5) of the Charter. The Court therefore overrules this preliminary objection and dismisses the same.

Contentious cases

007/2013 Mohamed Abubakari v United Republic of Tanzania

90. The Applicant having filed his Application at the Registry of the Court on 8 October 2013, the time line for seisure should run from 29 March 2010, to that date, that is, 3 years, 3 months and 1 0 days. The question that now arises is whether such a timeline is reasonable.

Contentious cases

007/2013 Mohamed Abubakari v United Republic of Tanzania

92. In the instant case, the fact that the Applicant is in prison; the fact that he is indigent; that he is not able to pay a lawyer; the fact that he did not have the free assistance of a lawyer since 14 July 1997; that he is illiterate; the fact that he could not be aware of the existence of this Court because of its relatively recent establishment; all these circumstances justify some flexibility in assessing the reasonableness of the timeline for seisure of the Court14.

Contentious cases

007/2013 Mohamed Abubakari v United Republic of Tanzania

93. The Court therefore holds that the timeline between the date it was seised of the instant case, that is, 8 October 2013, and the date on which the Respondent deposited the declaration accepting the jurisdiction of the Court to receive individual applications, that is 29 March 2010, is reasonable within the meaning of Article 56 (6) of the Charter. The Court therefore dismisses the objection on admissibility grounded on failure to fi le the Application before the Court within a reasonable time.

Contentious cases

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