The Commission confirmed this decision in Sudan Human Rights Organisation & Centre on
Housing Rights and Evictions (COHRE) v. Sudan, where it held that “considering that the
alleged violations prima facie constitute ‘serious and massive violations’, [it] finds that
under the prevailing situation in the Darfur, it would be impractical to expect the
complainants to avail themselves of domestic remedies, which, are in any event,
ineffective. Had the domestic remedies been available and effective, the Respondent State
would have prosecuted and punished the perpetrators of the alleged violations, which it
has not done”.73
3.3.3 Meeting the exhaustion requirement: key aspects
The need to make “normal use” of the remedy
If a domestic remedy is covered by the exhaustion rule (i.e., it meets the requirement of
effectiveness and other conditions), a victim is obliged to make “normal use” of that
remedy. “Normal use” implies that she complies with procedural requirements in domestic
law, such as time limits, and formal requirements, such as subject matter jurisdiction and
standing to bring the action. The failure of counsel to observe procedural requirements will
not absolve the victim of the responsibility to meet the requirements of domestic law,
unless that failure is in some way attributable to conduct by the State. If procedural
requirements are so onerous or impractical as to make the remedy ineffective or
inaccessible in the circumstances of the case, or authorities impede recourse to the
procedure, resort to those remedies would not be considered “normal use.”
...
The need for a final decision
In order to meet the exhaustion requirement, a victim must have obtained a final decision
from the highest court to which recourse is available. If there are ongoing proceedings at
the time the Committee considers a communication, the claim will not have been properly
exhausted. In such circumstances, the complainant must either demonstrate that an
exception to the requirement applies or re-submit the communication after obtaining a
final judgment. A final decision implies that appeals have been taken to the highest
possible level. If there are multiple claims, all must have been pursued through to a final
decision at the highest appellate level. Claims that have been discontinued by the victim
will be considered unexhausted. Like initial proceedings, appellate remedies must be
available, adequate and effective in the particular circumstances of the case in order to be
subject to the exhaustion rule.
…
The need to raise the substance of the claim at the domestic level
In order to satisfy the exhaustion requirement, the claim presented in a communication
must have been raised in substance at the domestic level. This requirement is wellestablished in human rights jurisprudence. 74
The ECtHR has clarified that the European Convention right, need not be explicitly raised in
the domestic proceedings, as long as the issue was raised in substance. 75 On this particular
issue, the CEDAW Committee has unfortunately rendered a communication inadmissible
where sex discrimination has not been raised explicitly in a domestic proceeding even
where it was implicitly raised.76
73
Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v. Sudan, (ACHPR Commu.
279/03-296/05) para.102 available at http://caselaw.ihrda.org/doc/279.03-296.05/view/.
74
Sullivan, Donna J, ‘Overview of the Rule Requiring Exhaustion of Domestic Remedies Under the Optional
Protocol to CEDAW’, OP-CEDAW Technical Papers No. 1, International Women’s Rights Action Watch Asia Pacific,
pp. 8-10, available at: http://www.iwrawap.org/publications/doc/DonnaExhaustionWeb_corrected_version_march%2031.pdf.
75
Castells v. Spain, ECtHR no. 11798/85, Judgment of 23 April 1992, § 32; Ahmet Sadik v. Greece, ECtHR no.
18877/91, Judgment of 15 November 1996, § 33; Fressoz and Roire v. France, ECtHR no. 29183/95, Judgment of
21 January 1999, § 38; Azinas v. Cyprus, ECtHR no. 56679/00, Grand Chamber Judgment of 28 April 2004, §§ 40-41;
Cardot v. France, ECtHR no. 11069/84, Judgment of 19 March 1991, Series A no. 200, p. 18, § 34.
76
Kayhan v. Turkey, CEDAW 8/2005 (27 January 2006); N.S.F. v. United Kingdom, CEDAW 10/2005 (30 May 2007).
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