PART 2: Procedures of the Human Rights Commitee and the Committee against Torture
the submission to the CAT and the only investigation conducted was the one led by
the Public Prosecutor, which ended with a complaint being filed with no further
action. The lack of a substantive decision by the competent authorities after such
a prolonged delay brought the Committee to consider that the requirements of
Article 22(5) had been met.177
In V.N.I.M. v. Canada, the complainant had been pursuing remedies in immigration
proceedings for more than four years; the CAT Committee considered that any further extension of this time period would be unreasonable.178 In Blanco v. Nicaragua,
the complainant had spent nine years in detention by the time he submitted the
complaint. No remedies were available to him at that point in time. Whilst the
complaint was pending, a new government came to power, and released him after ten years in prison. The new government argued that the complainant now
had recourse to new remedies to seek recompense for his detention. The HRC
held that the complainant could not be required to pursue further remedies as the
application of such remedies would entail an unreasonable prolongation of the
complainant’s quest for vindication.179
vii. Burden of Proof
The initial burden is with the complainant to prove that he or she has exhausted or genuinely attempted to exhaust all appropriate domestic remedies.
The complainant must substantiate any claim that certain remedies are unavailable,
ineffective, futile or unreasonably long. Subsequently, the burden shifts to the State
party to provide evidence that domestic remedies are still available and effective.
This approach is quite flexible and ensures that the burden is shared between the
author and the State party. It is thus fundamentally important to submit sufficient
details on the complaints being made, the remedies sought and the elements that
render the remedies and investigations undertaken by States ineffective.
(d) No Simultaneous Submission to
Another International Body
The ICCPR and CAT will be addressed separately with regard to this ground of
inadmissibility, as the rules are materially different.
CAT Committee, Ben Salem v. Tunisia, Comm. No. 269/2005, para. 8.5. See also CAT Committee,
Gerasimov v. Kazakhstan, Comm. No. 433/2010, para.11.5 [“the renewed investigation was launched on
6 December 2010, almost four years after the alleged incidents had taken place”]; CAT Committee,
Sahli v. Algeria, Comm. No. 341/2008, para. 8.5.
178 CAT Committee, V.N.I.M. v. Canada, Comm. No. 119/1998, para. 6.2.
179 HRC, Blanco v. Nicaragua, Comm. No. 328/1988, para. 9.2.
177
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