continued since its accession to the Optional
Protocol, and have constituted continuing violations
of the Covenant. They recall that they initiated
judicial proceedings on 29 September 1997, within
the 10-year statute of limitations, because of the
authorities’ refusal to respect their obligations, and
draw attention to the attitude of the authorities, who
endeavoured to obstruct or delay their appeals.
5.6 The authors consider that the Court of Appeal
was tardy in handing down its decision of 26 January
2000, after their counsel had served a notice to
perform. They recall that following that decision
declaring the ordinary courts incompetent, the
authorities concerned refused or omitted to refer the
case to the Ministry of Defence in order that
proceedings might be brought in the military courts,
as provided for in article 71 (1) and (3) of the Code
of Military Justice. On 27 January 2000, therefore,
the authors lodged an appeal with the Supreme Court
challenging the validity of the decision of the Court
of Appeal.
5.7 According to the authors, when they lodged
the appeal with the Supreme Court on 27 January
2000, the registrar refused or wilfully omitted to give
the counsel formal notification of the requirements
laid down in article 110 of order No. 91-0051/PRES
of 26 August 1991. He also omitted to ascertain
whether article 111 of that order10 applied, in other
words to ascertain the age of Auguste Sankara in
order to determine whether he was a minor. By its
decision of 19 June 2001, the Supreme Court refused
or wilfully omitted to remedy the registrar’s
violations and to verify proprio motu the age of
Auguste Sankara, who, having been born on 21
September 1982, was in fact a minor when the
appeal was lodged—thus committing two separate
violations of Auguste Sankara’s rights under article
16 of the Covenant. In addition, the authors draw
attention to the fact that counsel were not allowed to
pay 5,000 CFA francs when making their
application, and that the Supreme Court refused to
examine the case on the merits, on the sole grounds
that payment of 5,000 CFA francs 11 was required,
and hence to permit continuation of the proceedings.
5.8 The authors again refer to the authorities’
wilful failures to act at various stages of the
proceedings, namely, their failure to refer the matter
to the Minister of Defence in order that proceedings
might go ahead before a military court, when in fact
such an action is required under the abovementioned article 71 (3).
5.9 As to the exhaustion of domestic remedies,
the authors, referring to the Committee’s
jurisprudence, 12 state that the Covenant requires
criminal proceedings to be initiated at the national
level in the case of serious violations, and in
particular unlawful deaths. As the State wilfully
omitted or refused to initiate any form of inquiry or
civil, criminal or military proceedings, the authors
explain that they then lodged a complaint against a
person or persons unknown in connection with the
death of Thomas Sankara and the rights of his
family, in so far as that was the only domestic
remedy available in respect of the alleged violations.
They recall that they were unable to initiate such
proceedings before the military courts under article
71 (3) of the Code of Military Justice. On the basis
of the Committee’s jurisprudence, 13 the authors
maintain that none of the remedies mentioned by the
State party may be regarded as effective, given their
purely disciplinary or administrative nature, and the
fact that they are not legally binding on the public
authorities (in the case of non-contentious remedies)
and cannot provide an effective remedy for alleged
serious violations (in the case of contentious
remedies). As to domestic remedies for denial of
justice, the authors, citing the Committee’s
jurisprudence,14 consider that it is incumbent on the
Committee to determine whether the Supreme Court
violated its obligations of independence and
impartiality, and that they could not, at the time of
their appeal, know in advance what action the Court
would take. In their opinion, the application for
disqualification of the President of the Supreme
Court could not constitute an effective recourse in
that it would not remedy the irreversible effects of
the Court’s decision, which is not appealable. With
regard to the appeal of 20 September 2002
concerning the failure to produce the body of
Thomas Sankara, the authors state that the purpose
of that appeal was to obtain direct evidence
concerning the circumstances of the victim’s death,
and that the appeal could not remedy the alleged
violations vis-à-vis the members of his family. The
authors add that the only effective and adequate
remedy for the family members was exhausted by
the Supreme Court decision of 19 June 2001. Lastly,
12
Communications Nos. 563/1993, Nydia Bautista de
Arellana v. Colombia, Views of 27 October 1995,
612/1995, Vicente v. Colombia, Views of 29 July 1997,
and 778/1997, Coronel v. Colombia, Views of 24 October
2002.
13
Communication No. 612/1995, Vicente v. Colombia,
Views of 29 July 1997.
14
Communication No. 886/1999, Schedko et al. v.
Belarus, Views of 3 April 2003.
10
Article 111 of order No. 91-0051/PRES of 26 August
1991: “The following are nevertheless exempted from
payment of a bond: persons sentenced to ordinary
imprisonment or light imprisonment; persons who are in
receipt of, or have requested, legal aid; minors under the
age of 18.”
11
Equivalent to approximately 7.6 euros, according to the
authors.
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