Furthermore, in terms of article 18 of the Organic Law No. 013-2000/AN of 9 May 2000,
on the organisation, jurisdiction and functioning
of the “Cour de Cassation”
and
its
procedure “...where the referral is ordered by the combined chambers of the “Cour de
Cassation”, the lower court to which the matter is referred has to comply with the decision
of the combined chambers on the points of law addressed by the latter.
Finally, in terms of article 19 of the same
law, “[the ‘Cour de Cassation] in reversing a
decision without referral may put an end to litigation when the facts of the matter are such
that they allow for application of the appropriate law.
70. It is therefore clear that appeal at the Cour de Cassation is not a waste of time and it
can in certain circumstances lead to a change or change the substance of a decision; and
without making such an appeal, one may not know what the Court would have decided.
As the European
Court of Human
Rights noted, in a matter concerning
France which
belongs to the same legal family as Burkina Faso: “the Cour de Cassation’” is among the
local remedies to be exhausted in principle to comply with article 35 of the Convention*.”
From the foregoing, it is evident that the appeal provided by the Burkinabé judicial system
is an effective remedy, which the individual applicants should have accessed so as to
comply with the rule of exhaustion of local remedies required under article 56(5) of the
Charter and Rule 40(5) of the Rules.
71. It is understood that this conclusion does not in any way prejudge the distinct issue
as to whether the procedure relating to a given remedy is unduly prolonged. This issue
will now be addressed by the Court.
2) The issue of unduly prolonged procedure
72. In its preliminary objections and response to the Applicants’ submission regarding the
unduly prolonged
nature of the procedures, the Respondent argues, firstly,
that “the
unduly prolonged nature of the procedure ...is determined only in cases where available
4 Matter of Civet versus France, ruling of 28 September 1999, paragraph 41. See also the jurisprudence
cited in the same vein and paragraph 43. See further the Matter of Yahaoui v. France, 20 January 2000
ruling, paragraph 32.
24
(eo-
A/
1
aod