the length of the procedure should be determined in terms of the single remedy which
was not utilised, for the Applicants, it should be judged in terms of the entirety of the
procedure conducted at national level.
90. In the opinion of the Court, the unduly prolonged nature of a procedure as addressed
in article 56(5) of the Charter applies to local remedies in their entirety as utilised or likely
to be utilised by those concerned.
The wording of this article which refers to exhaustion
of “local remedies” and the procedure for “such remedies” is quite clear and does not
contain
any
provision
limiting the criteria for unduly
remedies which have not yet been utilised.
prolonged
procedure
solely to
Besides, it would be difficult to determine the
length of the procedure for a remedy which has not even been utilised.
b) The duration of the remedy procedure
91. The Respondent further argues (as we have seen) that the duration of investigations
into the matter simply depends on the complexity of the case, the absence of formal
evidence
as to the
identity of the
culprits, the
concern
of the
courts to respect the
presumption of innocence, the comportment of the Applicants themselves, and that of the
Respondent's own institutions.
It rejects in particular the Applicants’ allegation according
to which this matter had been frozen between 2001 and 2006, indicating that “during the
period of illness of the principal accused, other acts of investigation, such as hearing of
witnesses, were performed”.
For their part, the Applicants maintain that the procedure had been unduly prolonged,
considering,
in particular,
that they
President of Faso to be heard
had
by an
to wait for two
years
Investigating Magistrate
for the
brother of the
and furthermore that
. investigations were subsequently frozen for more than five years due to the illness of the
principal accused.
92. The Court is of the opinion that determination as to whether the duration of the
procedure in respect of local remedies has been normal! or abnormal should be carried
out on a case-by-case basis depending on the circumstances of each case.
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