3.3.4 Implications of the ‘exhaustion’ rule on women
Of the general admissibility requirements listed above, exhaustion of domestic remedies is
particularly a challenge for women seeking to bring individual complaints of violations or other
forms of discrimination. Many women around the world lack general access to domestic
remedies for violations they experience. Alternatively, the patriarchal bias against women
entrenched in State institutions makes access to remedies very difficult. Such biases manifest
in different ways - police around the world view domestic violence as a private matter that
does not merit State intervention; claims of sexual violence by women are often considered
incredible and therefore not investigated; women are harassed for daring to report violations,
women’s secondary status is entrenched in law when it requires women to get their husband’s
permission to pursue legal remedies; the low socio-economic status of women generally
renders them powerless in approaching the often distant, abstract, intimidating and expensive
legal systems. Moreover, “legal systems often discriminate against persons living in poverty
who are unable to afford legal advice, are illiterate and are powerless to change legislative
processes”. 77 The committees presiding over individual complaints of the human rights
instruments have, in recognition of some of these challenges, adopted a broad interpretation
of exhausting domestic remedies opening doors for women to access these mechanisms for
justice.
3.3.5 Recognised exceptions to the exhaustion of domestic remedies rule
International and regional treaties provide for exceptions to the application of the
exhaustion rule. For example, Article 46.2 of the American Convention establishes three
situations in which the rule requiring the exhaustion of domestic remedies does not apply:78
(a) when the domestic legislation of the State concerned does not afford due process
of law for the protection of the right or rights that have allegedly been violated;
(b) when the party alleging violation of his rights has been denied access to the
remedies under domestic law or has been prevented from exhausting them; and
(c) when there has been unwarranted delay in rendering a final judgment under the
aforementioned remedies.
Similarly, the Optional Protocol to the ICCPR provides that the exhaustion rule shall not
apply “where the application of the remedies has been unreasonably prolonged”,79 and the
Optional Protocol to CEDAW provides that the rule will not apply where “the application of
such remedies is unreasonably prolonged or unlikely to bring effective relief”.80
In determining whether the application of a remedy has been unreasonably prolonged,
human rights bodies consider all of the circumstances, including the complexity of the case
and the conduct of the author and the authorities. 81 For example, in the case of Giri v
Nepal, the Human Rights Committee held that a failure to investigate allegations of torture
and arbitrary detention four years after the State Party had been put on notice of those
allegations amounted to an unreasonable delay. 82 In AT v Hungary the CEDAW Committee
found that a delay of three years since the incident meant that remedies had been
77
Anderson, M ‘Access to Justice and Legal Process: Making Legal Institutions Responsive to Poor people in LDCs.’
SOAS Institute of Development Studies Working Paper No. 178, 2003 available at:
www.ids.ac.uk/ids/bookshop/wp/ap178.pdf.
78
Article 46.2 of the American Convention of Human Rights.
79
Article 5(2)(b).
80
Article 4(1).
81
See, for example, Gunaratna v. Sri Lanka, CCPR 1432/2005, 17 March 2009, para. 7.5.
82
Giri v Nepal, CCPR 1761/2008, 24 March 2011, para. 6.3.
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