55.
In its preliminary
objections,
the
Respondent
also
raised
an
objection
to the
admissibility of the application on the grounds of non-exhaustion of local remedies (Rule
40 (5).
However, in its Ruling of 21 June 2013, the Court had declared that this objection was
not of an exclusively preliminary nature and had to
join
it with the merits, pursuant to
Rule 52 (3) of the Rules of Court (supra, paragraph 32).
At this juncture of consideration of the matter, the Court will now rule on the said objection.
56. An examination of the pleadings establishes that there was no dispute over the fact
that the individual Applicants had not exhausted all the local remedies available to them
under the Burkinabé judicial system. It had been clearly established that they had decided
not to go on appeal.
The issue in contention here between the parties is, first, one of determining whether the
fact that the individual Applicants did not resort to the Court of Final Appeal (Cour de
Cassation)
was effective or not. The other issue is one of ascertaining whether litigation
of these cases had been unduly prolonged within the meaning of article 56(5) of the
Charter.
Moreover,
it will be necessary to treat separately the issue as to
Burkinabé
Human
and
Peoples’
Rights
Movement
(MBDHP)
whether or not the
was,
for its part,
also
required to exhaust local remedies.
1) The issue of the effectiveness of the Appeal to the “Cour de Cassation” (Court of
Final Appeal)
57. In its response dated 13 April 2012, the Respondent noted that the highest judicial
institution in Burkina Faso, the “Cour de cassation’, had not been seized of the matter
before it was brought before the African Court on Human and Peoples’ Rights.
58. It stated that whereas that option was available to them, the Applicants failed to have
recourse to the “Court of Final Appeal” and therefore “[nad] not exhausted all the local
remedies available’.