jurisdiction
which
may
not
provide
the
remedy
to the
allegations
of human
rights
violations’.
65. At the Public Hearing of 7 March 2013, Counsel for the Applicants restated this same
position, insisting on the ineffectiveness of this “Cour de Cassation”, which in his view
“did not provide the possibility to change the substance of the decisions that had been
taken”.
66.
The Court observes that under the Burkinabé judicial system, appeals to the “Cour
de Cassation” were intended to annul a final judgement or ruling for violation of the law
(Criminal Procedure Code of 21 February 1968, articles 567 and ef seq).
67. As has just been seen, according to the Respondent, the “Cour de Cassation” was an
absolutely effective judicial remedy which allows the highest court in the land to redress
violations of the law by lower courts.
The Applicants however argue that, in the instant case, this remedy would
not have
yielded any effect as the “Cour de Cassation” was limited to censuring violations of the
law without delving into the merits of the matter per Se.
68. In ordinary language, being effective refers to “that which produces the expected
result” (Le Petit Robert, 2011, p. 824). On the issue under consideration, the effectiveness
of a remedy is therefore measured
in terms of its ability to solve the problem raised by
the Applicant.
69. In the instant case, no doubt has been
cast a priori on the ability of the “Cour de
Cassation” to bring about a change in the situation of the Applicants on the merits of the
matter, where it notices any violations of the law in the treatment of the matter by the
Court whose ruling has been impugned.
On that score,
it should
even
be noted that in terms of article 605 of the Criminal
Procedure Code of Burkina Faso “...if the judgment or ruling on appeal is reversed [anew]
for the same reasons as the first, the judicial chamber will apply the provisions of the law
to the facts deemed established by the Judges of the lower court”; which means that, in
the final analysis, the lower court itself will rule on the merits of the matter.
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