CCPR/C/112/D/2051/2011 Appendix [Original: English] Individual opinion of Committee member Yuval Shany (partly concurring partly dissenting) 1. While I agree with all of the majority’s conclusions concerning the first author — Jit Man Basnet — I am unable to join the conclusion that those parts of the complaint concerning the second author — Top Bahadur Basnet — are admissible. Under article 5, paragraph 2, of the First Optional Protocol, the Committee must ascertain that the individual has exhausted all available remedies. However, nothing in the case file indicates that the second author attempted to take any steps to obtain a domestic remedy or even alert the State party of the fact that he regards himself a victim of a human rights violation prior to the filing of the Communication. Indeed, the State party’s claim that no such steps were taken has not been refuted by the second author. 2. The majority took the view that the State party “has not explained to the Committee which concrete remedies could adequately and effectively satisfy the claims made by each of the authors”. This holding is consistent with the Committee’s general approach that State parties claiming lack of exhaustion of local remedies must “specify the available and effective remedies that the author of the communication has failed to exhaust”.11 Still, I am of the view that an exception to this approach should be recognized where no steps whatsoever were taken by the author to claim remedies or even to bring his claim for a victim status to the attention of the State authorities. Under those circumstances, and in the absence of any explanation on the part of the author for his omission to take such steps, it is hard for me to accept that the State party has been afforded a reasonable opportunity for putting right the violation before the Communication has been brought to the Committee. 12 As a result, I believe that under the particular circumstances of the case at hand, the Committee is not in a position to ascertain that remedies were exhausted as far as the second author’s complaint is concerned. 11 12 14 The Committee’s general comment No. 33 (2008) on the obligations of State Parties under the Optional Protocol, para. 5. See Selmouni v. France, application No. 25803/94, judgment of the European Court of Human Rights of 28 July 1999, para. 74.