needing to wait for the final result of the court proceeding.18 The Inter-American
Human Rights Court has held that a case that has taken 5 years or more since the
initial process can result in exemption of the requirement of local remedies.19 The
Committee is cognizant of the fact that there is no fixed amount of years to say that a
local remedy is unduly prolonged, rather it is decided on a case-by-case basis giving
due regard to the rights of children at stake. The Committee, while drawing inspiration
from the above-mentioned cases, is in no way attempting to prescribe a definitive
amount of time for what needs to be considered as an ‘unduly prolonged local remedy’.
It is the view of the Committee that the amount of time and the nature of the right
invoked along with the best interests of the child should determine whether a local
remedy is unduly prolonged or not.
19. In the current Communication, the Committee notes that the domestic remedy has
taken over 7 years in total and the appeal has taken 2 years without the Court fixing
a date for a hearing of the case. Given the time that has lapsed during the
consideration of the case by the High Court and the rights of children at stake, the
Complainants should no more be subjected to wait for the decision of the Court of
Appeal whose proceeding so far has not demonstrated to be any faster. The right to
education that is being alleged to have been violated is an essential right for children,
which has a long-lasting effect on the well-being of children. Education determines the
future of children and a domestic proceeding that is prolonged on such fundamental
right should not be regarded as a remedy that should be sought till the end process.
The Committee, therefore, holds the view that the domestic remedy is unduly
prolonged.
20. The Committee does not find the argument of the Respondent State acceptable where
it relies on previous cases of the Committee namely Ahmed Bassiouny v Arab
Republic of Egypt and Sohaib Emad v Arab Republic of Egypt in arguing that local
remedies are effective. The Committee would like to differentiate between the case at
hand and the abovementioned two cases invoked by the Respondent State. Both in
the Ahmed Bassiouny and the Sohaib Emad cases the Committee declined the
communication as the Complainants were anticipating the ineffectiveness of the local
remedy by relying on previous cases or merely casting doubts without trying to
exhaust any remedy at the local level.20 However, in the present case, the Committee
notes that the Complainants have attempted to engage the domestic courts and
waited for 5 years to get a decision from the High Court, and appealed to the Court of
Appeal which took a long time to fix the hearing date. Such practices entail that the
domestic remedy is proved to be unduly prolonged while the State has been given
ample time to address the violation. Hence, it is the view of the Committee that the
Complainants' argument is not based on mere anticipation, but rather on proven
records of unduly prolonged domestic proceedings. The Committee reiterates, that
18 HRC, Communication 1085/2002, Louisa Bousroual (on behalf of Salah Saker) v Algeria (15 March
2006), para 8.3.
19 Inter-American Court of Human Rights (IACtHR), Genie-Lacayo v. Nicaragua, Merits, para 81; IACtHR,
Las Palmeras v. Colom-bia, preliminary objections, para 38.
20 ACERWC, Communication No 008/Com/002/2016, Sohaib Emad v Arab Republic of Egypt, (2017) para
18; ACERWC, Communication No 009/Com/001/2016, Ahmed Bassiouny v Arab Republic of Egypt, (2017)
para 24 and 30.
JN
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