Seeking Remedies for Torture Victims: A Handbook on the Individual Complaints Procedures of the UN Tready Bodies
risk of being subjected to torture if deported to the Republic of Congo on account
of his active involvement in political opposition activities in Switzerland and the
fact that he had received threatening phone calls. However, none of the claims
and evidence therein was presented to the Migration authorities in Switzerland
before lodging the complaint to the CAT, even though they could have paved the
way for the activation of appeal proceedings or a new asylum application. The CAT
Committee dismissed the claims by stating that:
[T]he complainant has failed to provide any valid reason for not submitting
this evidence, which he knows to exist, to the national authorities during
national proceedings.137
In exhausting domestic remedies, a person does not need specifically to invoke
the relevant international provision so long as the substance of the complaint is
addressed.138 For example, one may successfully exhaust domestic remedies with
regard to an allegation of torture without referring explicitly to Article 7 of the
ICCPR or the CAT in domestic proceedings, if those specific provisions have not
been incorporated into a State’s domestic law.
iii. Procedural Requirements for Domestic Remedies
A complainant is expected to comply with all reasonable procedural requirements regarding the availability of domestic remedies. That is, an author must
have exercised due diligence in the pursuit and exhaustion of available remedies.139
For example, a person may have a limited time in which to appeal a lower court’s
decision to a higher court. If he or she fails to do so, it is likely that any subsequent complaint will be deemed inadmissible due to a failure to exhaust domestic
remedies. This is so even if the failure to comply with local procedural requirements is the fault of a privately retained lawyer, rather than the complainant.140
Furthermore, ignorance of the law is no excuse.141
However, the complainant may sometimes be excused from strict application of
the domestic remedies rule if his or her publicly appointed lawyer has failed to
comply with local procedural requirements. For example, in Griffin v. Spain the complainant’s court-appointed counsel did not contact him at all, and consequently
did not inform him of the remedies available to him. Although the complainant
did not seek the relevant remedy within the time limit, the case was not held to be
inadmissible on these grounds.142
137 CAT Committee, F.M-M. v. Switzerland, Comm. No. 399/2009, para. 6.5.
138 HRC, B.d.B. v. the Netherlands, Comm. No. 273/1989, para. 6.3.
139 See, e.g., HRC, A.P.A. v. Spain, Comm. No. 433/1990, para. 6.2. See also CAT Committee, Yassin v. Canada,
Comm. No. 307/2006, para. 9.3.
140 See CAT Committee: R.S.A.N. v. Canada, Comm. No. 284/2006, para. 6.4; H.E-M. v. Canada, Comm.
No. 395/2009, para. 6.4.
141 See, e.g., HRC, Soltes v. Czech Republic, Comm. No. 1034/2901, para. 7.4.
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