the Respondent State, through the practice of its State organs since 1998,
by the repeated commission of human rights violations, the impunity of its
agents who are perpetrators of the said violations, and the official tolerance
of other perpetrators of violations who it knows and who are on its territory
but who it refuses to try or extradite despite the requests it has received to
this effect.
325. The Applicant State
submits that the Court
may be guided by the
jurisprudence of the ECHR, in particular, in the matter of Akdivar and others
v. Turkey which held that the rule of exhaustion of local remedies does not
apply “where an administrative practice consisting of a repetition of acts
incompatible with the Convention and official tolerance by the State
authorities has been shown to exist, and is of such a nature as to make
proceedings futile or ineffective”.
326. Furthermore, the Applicant State argues that the Respondent State
deliberately confuses the local remedies provided for under Article 50 of the
Charter with the so-called international and regional remedies. It refutes the
argument that the existence of regional and international remedies is due to
the fact that Article 50 does not specify the nature of the remedies to be
exercised and that “an examination of the context of Article 50 of the Charter
corroborates this conclusion, since any inter-State procedure requires prior
dialogue between the States concerned (Article 47 of the African Charter)
and must allow time for reflection to enable them to reach a mutually
satisfactory solution (Article 48 of the Charter)”.
327. According to the Applicant State, in this respect, the Respondent State
specifies that Articles 47, 48 and 49 of the Charter, only refer to the
negotiation capacity of the parties, which was broadly confirmed by the
African Commission in Communication 227/99 - Democratic Republic of
Congo v. Burundi, Rwanda and Uganda.
328. The Applicant State submits that, in the instant case, there is no remedy to
be exhausted, which makes the Application admissible.
73
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