them since the entry into force of the Covenant and
the Optional Protocol because the proceedings have
not concluded to date, the Committee considered
that this part of the communication was admissible
ratione temporis.
additional remedy introduced by the authors in
connection with the complaint of 30 September 2002
against a person or persons unknown had been
exhausted at the time the communication was
examined.
6.4 As to the exhaustion of domestic remedies,
and the State party’s argument of inadmissibility
based on failure to make use of non-contentious
remedies, 20 the Committee recalled that domestic
remedies must be not only available but also
effective, and that the term “domestic remedies”
must be understood as referring primarily to judicial
remedies. The effectiveness of a remedy also
depended, to a certain extent, on the nature of the
alleged violation.21 In the present case, the alleged
violation concerned the right to life, and was linked
primarily to the alleged failure to conduct an inquiry
and to initiate proceedings against the guilty parties,
and secondarily to the alleged failure to correct the
victim’s death certificate, as well as to the failure of
the appeals initiated by the authors in order to
remedy the situation. In these circumstances, the
Committee considered that the non-contentious
remedies mentioned by the State party in its
submission could not be considered effective for the
purposes of article 5, paragraph 2 (b), of the
Optional Protocol.22
6.7 As to the State party’s claim concerning
prescription resulting from the tardy and
procedurally incorrect referral of the case to the
courts, the Committee considered it unfounded as set
out above (cf. para. 6.3). Moreover, the Committee
cannot accept this argument in support of the State
party’s assertion that the Procurator could not be
blamed for having refused to refer the case to the
Minister of Defence. In this connection, the
Committee found that the grounds for refusal
adduced by the Procurator on 23 July 2001 were
manifestly unfounded since (a) as set forth above,
that statute of limitations could not be applied (and
had not in fact been applied by the various
authorities throughout the proceedings), and (b) the
authors could not themselves bring the case before
the military courts (the only competent jurisdiction,
the Court of Appeal’s decision No. 14 having
become final following decision No. 46 of the
Supreme Court). Only the Minister of Defence, after
referral by the Procurator, could issue the order to
initiate proceedings, failing which it would be
invalid. Hence the Procurator wrongly halted the
proceedings initiated by the authors and,
furthermore, did not respond to their appeal of 25
July 2001, a fact which has not been commented on
by the State party.
6.5 With regard to the State party’s claims
relating to the non-use of certain contentious
remedies concerning the denial of justice, the
Committee noted that the State party had confined
itself to a mere recital of remedies available under
Burkina Faso law, without providing any
information on the relevance of those remedies in
the specific circumstances of the case or
demonstrating that they would have constituted
effective and available remedies. With particular
regard to the application for disqualification of the
President of the Supreme Court, the Committee
considered that the authors could not know the
Court’s decision in advance, and that it would be for
the Committee to determine, in the examination of
the merits, whether the President’s decision had been
arbitrary or constituted a denial of justice.
6.6 On the question of the claim of inadmissibility
on the ground that the authors had lodged a
complaint with the Committee when proceedings
were pending before the national courts, the
Committee could not accept this argument in that the
20
Médiateur du Faso, Collège des sages, National
Reconciliation Commission, and Compensation Fund for
Victims of Political Violence.
21
Communication No. 612/1995, Vicente v. Colombia,
Views of 29 July 1997.
22
Communications Nos. 612/1995, Vicente v. Colombia,
Views of 29 July 1997, and 778/1997, Coronel et al. v.
Colombia, Views of 24 October 2002.
127
127
6.8 Lastly, the Committee considered that the
authors exhausted domestic remedies in conformity
with article 5, paragraph 2 (b), of the Optional
Protocol.
6.9 As to the State party’s argument about the
allegedly political character of the complaint, the
Committee considered that this in no way affected
the admissibility of the communication and, in fact,
fell within the scope of the examination of the
communication on the merits.
6.10 Regarding the complaints of violations of
articles 17 and 23 of the Covenant, the Committee
considered that the authors’ allegations concerning
the consequences, where their protection in
particular was concerned, of the failure to conduct an
inquiry into the death of Thomas Sankara and to
identify those responsible did not fall within the
scope of the articles mentioned, but did raise issues
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