CCPR/C/131/D/2772/2016 Annex [Original: English] Individual opinion of Gentian Zyberi (partly dissenting) 1. I am in agreement with the Committee’s finding that there has been a violation of articles 7 and 9, read alone and in conjunction with article 2 (3), and of articles 14 (3) (b) and (g) and 17 of the Covenant. The claim concerning a violation of article 23, however, should have been declared inadmissible, as it has not been adequately raised with the domestic authorities. Moreover, it has been the general practice of the Committee, having found of a violation of articles 7 and 9, to consider the application of article 23 unnecessary. 1 2. The Committee does not provide an explanation as to why the author’s claim under article 23 is admissible, accepting it without much discussion, together with the claim under article 17. Despite the regrettable fact that the State party has failed, yet again, in its duty to cooperate with the Committee under the Optional Protocol, not responding to its invitations to submit its observations on the admissibility and merits of the communication for a period of over two years, the Committee would need to be at least satisfied that the author’s claims before it have been raised at the domestic level, to conform with the requirement of exhaustion of domestic remedies. 3. In the case at hand, the author has raised at the domestic level claims concerning violations of articles 7, 9, 10 and 14, but not concerning article 23. The author applied to the Bukavu Tribunal de Grande Instance (court of major jurisdiction) to request that H.K. and D.C. be prosecuted for torture and arbitrary arrest and detention 2 and he regularly followed up on the national procedures that had been initiated.3 He has on numerous occasions reported acts of torture and ill-treatment to various authorities, firstly, the authorities of the National Intelligence Agency; secondly, the authorities of Bukavu central prison; and thirdly, the courts, to which he has submitted two criminal complaints and several requests for release on bail.4 However, the author does not seem to have raised in these various complaints to the domestic authorities a related claim of a violation of article 23. Given the author’s prolonged engagement with the domestic authorities, despite alleged acts of pressure or threats, it is difficult to accept that the author is justified in not having raised the claim concerning article 23 with them. Hence, this specific claim should have been declared inadmissible. 1 2 3 4 GE.21-09615 William A. Schabas, U.N. International Covenant on Civil and Political Rights: Nowak’s CCPR Commentary, 3rd rev. ed. (N.P. Engel, 2019), citing, among others: Tharu et al. v. Nepal (CCPR/C/114/D/2038/2011), para. 10.11; El Hojouj Jum’a et al. v. Libya (CCPR/C/111/D/1958/2010 and Corr.1), para. 6.8; Faraoun et al v. Algeria (CCPR/C/109/D/1884/2009), para. 7.13; A.H.G. and M.R. v. Canada (CCPR/C/113/D/2091/2011), para. 10.5; Serna et al. v. Colombia (CCPR/C/114/D/2134/2012), para. 9.9; and Dovadžija and Dovdzija v. Bosnia and Herzegovina (CCPR/C/114/D/2143/2012), para. 11.9. See the Views to which the present opinion is annexed, para. 2.11. Ibid., para. 2.16. Ibid., para. 3.4. 11