38. In a Note Verbale dated 20 March 2008 and a letter dated 19 March 2008, reminders were sent rd to the parties to inform them of the deferment of the communication to the 43 Ordinary Session. 39. All attempts at getting responses from the Respondent State have been futile (or unsuccessful). Therefore, the Commission decided to consider the communication on the merits. th 40. During its 5 Extra Ordinary Session, which took place in Banjul, The Gambia from 21 to 29 July 2008, the African Commission considered the communication and finalised its decision on the merits. The Law Admissibility On the exhaustion of local remedies 41. The African Charter on Human and Peoples’ Rights stipulates in its Article 56 that the communications referred to inArticle 55 should, if they are to be considered, necessarily be sent after exhaustion of local remedies, if they exist, unless the procedure of exhaustion of local remedies is unduly prolonged. 42. In its memorandum on admissibility, the Respondent State contends that as far as it is concerned the communication should be declared inadmissible. In support of this position the Respondent State affirms that the Complainant “does not provide evidence of having lodged an appeal against the ruling in dispute, whereas this means of recourse remains open, in conformity with Article 150, paragraph 3 of the Transitional Constitution in the Democratic Republic of Congo” . 43. According to the Respondent State, it was possible for the Complainants to lodge an appeal before the Supreme Court of Justice against all rulings by the Military Tribunal which are in dispute, and that, by not using this remedy, the Complainant has not exhausted the available remedies and therefore, it requests the African Commission to declare the communication inadmissible for non exhaustion of local remedies. th 44. In a memorandum conveyed to the Secretariat of the African Commission on the 17 April 2005, the Complainant insisted on the non existence of remedies at the time when the facts occurred. They contend that the sentences passed by the Military Tribunal with regard to them cannot be subjected to rd any remedies. In effect Article 5 of Decree 019 of the 23 August 1997 establishing the Military Tribunal stipulates that its rulings “can neither be opposed nor appealed”. 45. They contend that an eventual recourse to cancellation of the judgment in question, although rd provided for by Article 272 of the Law of 23 August 1972 instituting the Code of Military Justice, cannot be implemented due lack of “jurisdictional competence” ; insofar as they could have brought an appeal before the Supreme Court if the facts, which date back to 1999 were not prior to the th Transitional Constitution which was adopted on 4 April 2003 and made it possible for citizens to appeal against the rulings of the Military Tribunal. th 46. The Complainant contends that the Transitional Constitution Decree of the 9 April 1994 (in force at the time of the events – 1999) stipulates in its Article 102 that: “The Supreme Court of Justice knows……appeals lodged against rulings passed in the final jurisdiction by the Courts and Tribunals” does not take into consideration the decisions of the Military Tribunal. 47. The Complainant considers therefore that local remedies were not available by the time the facts occurred. th th 48. At the 37 Ordinary Session of the African Commission which was held from the 27 April to th 11 May 2005 in Banjul, The Gambia, the Complainant made an oral presentation before the African Commission in reiteration of these arguments.