United Nations Human Rights Website - Treaty Bodies Database - Document - Sessional/Annual Report of Committee - 4.8 The State party submits that several of the complainants were summoned to a further hearing on 9 September 1996 and that the investigations are continuing without delay. The State party thus argues that the authors cannot invoke the exceptions to the rule of exhaustion of domestic remedies laid down in article 22, paragraph 5 (b), of the Convention, since their application is not unduly prolonged nor can it be said that it is unlikely to bring effective relief. Counsel's comments on the State party's submission 5.1 In his reply to the State party's submission, counsel argues that the requirement of exhaustion of domestic remedies applies at the moment when the Committee actually examines the admissibility of the communication, not at the time of submission. According to counsel, it is thus not certain that domestic remedies will not be exhausted when the Committee considers the communication. 5.2 Counsel further points out that cruel, inhuman or degrading treatment is not a criminal offence under French law, for which reason the authors had to base themselves on articles 309 and 63 of the (former) Penal Code. 5.3 Moreover, counsel recalls that the rule of exhaustion of domestic remedies does not apply when the remedies are not likely to be effective. In this context, counsel submits that, on 2 October 1996, the complainants requested the investigating magistrate, under article 81 of the Code of Criminal Procedure, to proceed to a reconstruction of the events, including the conditions in which they were arrested, transported in a van and detained. On 18 October 1996, the magistrate rejected their request. The complainants have appealed this decision to the Court of Appeal of Papeete. 5.4 According to counsel, the refusal deprives the complainants of an effective and useful remedy. Counsel argues that the reasons on which the magistrate based his decision (the harmful media effects) ("le retentissement médiatique néfaste"), are totally unacceptable and show that he recognizes that the reconstruction would reveal a disturbing reality. It is stated that the magistrate also objected to the costs such a reconstruction would entail. 5.5 Counsel argues that with this decision, the magistrate has violated his international obligations under articles 10, 11, 12 and 13 of the Convention against Torture. Counsel therefore contends that the procedure can no longer be seen as likely to bring effective relief and that the communication should thus be declared admissible. 6.1 In a further submission, counsel states that the Court of Appeal of Papeete has confirmed the decision by the investigating magistrate of 18 October 1996 rejecting the complainants' request for a reconstruction. Counsel states that the complainants have requested a judicial review (cassation) of this decision and submits that all domestic remedies will thus have been exhausted when the Committee takes up the communication. Counsel adds that it is clear that the procedure initiated under article 85 of the Code of Criminal Procedure will not give effective relief. According to counsel, this is also shown by the fact that there has been as yet no arraignment (mise en examen) of the accused although the complainants have recognized their aggressors from the pictures furnished by the investigating magistrate. http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/de75e94f920bd0a0802565a600537744?Opendocument (106 of 109)16/10/2006 9:54:12 AM