Position of the African Commission 49. The main question regarding the admissibility of the case under consideration is whether local remedies were in existence at the time when the facts occurred and, if yes, whether they have been exhausted pursuant toArticle 56.6) of the African Charter on Human and Peoples’ Rights. 50. In effect, Article 56.6 provides that communications “are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized with the matter”. 51. The African Commission is of the view that if such important facts are within the jurisdiction of an exceptional jurisdiction all legal guarantees shall be given to the accused persons for their defence in order to avoid any miscarriage of justice. That is the rationale for having remedies in all procedures, especially in criminal procedure. All the ordinary remedies shall be available to them. th 52. An analysis of Article 150, paragraph 3 of the Transitional Constitution of 4 April 2003 on which the Respondent State relies shows that the Transitional Constitution was passed after the facts and also after the decision sentencing the complainants. In such circumstances, the Commission is of the view that applying such a law of a general scope would violate the principle of non-retrospectiveness of the law, especially as the new Transitional Constitution Decree does not expressly provide for such remedy. 53. In the present communication, it is the State that alleges that local remedies have not been exhausted and as such the burden is on it to show that local remedies exist. It observes that such remedy is available under Decree 019 of 23 August 1997 establishing the Military Tribunal; Article 5 of the Decree expressly provides that the rulings of the latter “can neither be opposed nor appealed.” Thus, it appears that the Decree includes a derogatory [sic] clause which precludes any opposition or appeal against the rulings of bodies such as the Military Tribunal. In other terms, the applicable law at the time the facts occurred does not provide any remedy. In a similar situation, the African Commission, drawing inspiration from its own well-established jurisprudence, already held, 6 in , and other communications , that “it is reasonable to assume that the local remedies would not only be prolonged, but they will produce any result” [sic]. 54. Moreover, the same analysis can apply to the other common remedy, namely the lodging of an th appeal with the Supreme Court. In terms of the Transitional Constitution Decree of 9 April 1994 (in force at the time the facts occurred - 1999), Article 102 of which provides that “the Supreme Court of Justice could only know of appeals lodged against rulings passed in final jurisdiction by the Courts and Tribunals” is only available in common offences. 55. In consequence, the African Commission rules that local remedies were not available to the 7 Complainants. It will apply its jurisprudence on exhaustion of local remedies without it necessarily seeking to establish the effectiveness of local remedies; the Commission is of the view that it was absolutely impossible for the victims to exhaust effective local remedies. 56. On these grounds, the African Commission declares the communication admissible. Merits 57. In accordance with 120 of the African Commission, where a communication submitted in accordance with Article 55 of the Charter has been declared admissible, the Commission “shall consider the communication in the light of all the information that the individual and the State party concerned have submitted in writing, it shall make known its observation on this issue.” 58. In the present case, the conclusions brought to the dossier by the two parties both in terms of the procedure and on the merits of the case enable the Commission to make pronouncements through the presentation and analysis of the arguments of the parties to the suit. Arguments of the Complainants 59. The Complainants submit the violation of the African Charter in its Articles 7.a, 7.b, 7.d and 26. The Complainants contest the legal basis, the competence, and the procedure of the Military Court