2.5. Tackling delays in torture cases: Ensuring prompt and effective investigations and prosecutions 2.5.1. Bringing a case before an international human rights treaty body a) Admissibility: Unreasonably prolonged domestic remedies Victims of torture whose complaints are not promptly investigated or whose cases are not dealt with expeditiously may invoke the international standards just outlined in requesting the national investigating or prosecuting body concerned to take the requisite action and in requesting any court seized with the matter to expedite proceedings. This is in line with the general rule according to which international complaints procedures require that complainants exhaust domestic remedies for a case to be admissible. As explained by the African Commission on Human and Peoples’ Rights in Jawara v. Gambia “The rationale of the local remedies rule both in the Charter and other international instruments is to ensure that before proceedings are brought before an international body, the State concerned must have had the opportunity to remedy the matters through its own local system. This prevents the Commission from acting as a court of first instance rather than a body of last resort.”116 A complainant is expected to exhaust remedies that are: “… available, effective and sufficient… A remedy is considered available if the petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success, and it is found sufficient if it is capable of redressing the complaint.”117 Conversely, remedies need not be exhausted if they are ‘unduly prolonged.’118 As a general rule, it is not sufficient for a complainant simply to state that domestic remedies will be unduly prolonged. A complainant must try to exhaust existing remedies unless there is clear evidence that remedies are prolonged and/or ineffective.119 Once it is demonstrated that the proceedings are prima facie unduly prolonged, the burden shifts to disprove this.120 Domestic remedies may be unduly prolonged and hence ineffective: • • Where investigations and/or prosecutions of allegations of torture have been delayed substantially or even indefinitely;121 In cases of massive human rights violations;122 116 Jawara v Gambia, para.31. 117 Ibid., paras.31, 32. 118 This is expressly recognised in Article 22 (5) (b) CAT, Article 5 (2) of the Optional Protocol to the ICCPR, Article 46 (2) (b) of the Inter-American Convention on Human Rights and Article 56 (5) of the African Convention on Human and Peoples’ Rights. Although not explicitly stipulated in Article 35 of the European Convention on Human Rights, the European Court of Human Rights has recognised that remedies that are unduly prolonged are not effective and need not be exhausted. See for example the admissibility decision in Mikheyev v. Russia, Application no. 77617/01. 119 See Las Palmeras v. Colombia (Preliminary Objections), para.38; Aksoy v. Turkey, paras.52 et seq,; Amnesty International v. Sudan, paras.29 et seq; Dingiri Banda v. Sri Lanka, para.6.4. 120 This is according to the general principle applied in the jurisprudence of all international human rights bodies that the state party has to show that remedies are available and effective, see e.g. Velasquez Rodriguez v. Honduras, paras.63, 64. See also Rajapakse v. Sri Lanka, paras.6.1, 6.2.; Las Palmeras v. Colombia (Preliminary Objections), para.38; Ilhan v. Turkey, paras.56 et seq.; Jawara v. The Gambia, paras.33, 34. 121 Jovica Dimitrov v. Serbia and Montenegro, para.6.1; Dragan Dimitrijevic v. Serbia and Montenegro, para.6.2. 26