therefore to approaching regional or international human rights mechanisms for violations of
human rights including sexual violence is that the victim or survivor must have accessed all
available and effective remedies domestically and failed to achieve meaningful justice.
Typically, an application to a human rights treaty body would include details of the facts of the
violation, the rights violated, the steps the applicant has taken domestically to address the
violation and details of the unsatisfactory outcome of these efforts. The State in response
would either: dispute the facts, assert the validity/outcome of the domestic process and/or
claim existence of other remedies that the applicant did not explore. Since it is the State that
often claims non-exhaustion of domestic remedies, the burden of proving so, lies with the
State.
The basics of what ‘exhaustion of domestic remedies’ entails are well documented and one
such comprehensive documentation is reproduced in the shaded box within this section,
followed by the implications of the admissibility requirement on women’s access to human
rights treaty body mechanisms. Some of the treaty bodies have also issued clarifying
information on the admissibility requirement of exhaustion of domestic remedies or compiled
their decisions on it. Significant decisions of the different regional and international
mechanisms interpreting the rule are discussed below.
3.3.1 Basics about exhaustion of domestic remedies
What does ‘exhaustion of domestic remedies’ mean?
Basically, it means that if a victim of a human rights violation wants to bring an individual
case before an international body, he or she must first have tried to obtain a remedy from
the national authorities. It must be shown that the State was given an opportunity to
remedy the case itself before resorting to an international body. This reflects the fact that
States are not considered to have violated their human rights obligations if they provide
genuine and effective remedies for the victims of actions of State officials, in recognition
that certain individuals may engage in unacceptable behaviour without the approval of their
governments.
The international bodies do recognise, however, that in many countries, remedies may be
non-existent or illusory. They have therefore developed rules about the characteristics
which remedies should have, the way in which the remedies have to be exhausted, and
special circumstances where it might not be necessary to exhaust them.
What kind of remedies must a complainant have exhausted?
A complainant must have exhausted any remedy (whether judicial or administrative in
nature) which is:
Available: the remedies exist and the victim (or someone else on his or her behalf) is
able to use them without restrictions;
Effective: it is possible for the remedy to be used successfully;
Adequate: the remedy is able to provide suitable redress for the complaint - for
example, if an individual was about to be deported, a remedy which could not suspend
the deportation would not provide suitable redress.
If the existing domestic remedies do not fulfil these criteria, a victim may not have to
exhaust them before complaining to an international body. However, the complainant needs
to be able to show that the remedies do not fulfil these criteria in practice, not merely in
the opinion of the victim or that of his or her legal representative. For example, it might be
necessary to be able to show that no person alleging torture who has ever used a particular
remedy has ever been granted compensation. If there is any doubt as to whether a remedy
is effective, the complainant should at least be able to show that an attempt was made to
use it. Furthermore, if the remedy has become unavailable through the complainant’s own
fault (e.g. where the complainant has failed to respect the deadline for making an appeal,
18
ADMISSIBILITY AND EXHAUSTION OF DOMESTIC REMEDIES | REDRESS
Select target paragraph3
Add to table of contents