Attorney General by Law no. 22/07 and Decree-Law no. 1/05, through which the
Attorney General applied to the Supreme Court without the presence or
submissions on the case from the Victim. As such, this violation on Article 7 could
be remedied through rectifying the law on which the special prerogative power of
the Attorney General is founded. The Victim could have done this by filing
application challenging the constitutionality of the law before the Constitutional
Council. The Victim did not file such an application. The Complainant has not
provided explanation on why the Victim did not pursue this avenue. Indeed, from
the Complainant’s submission, it was indicated that the victim was cognizant of the
availability of that avenue and applied for stay of execution of the Supreme Court’s
decision ‘in order to approach the Constitutional Council’. Accordingly and in the
absence of a submission by the Complainant that remedies were not available or
effective, the Commission finds that the exhaustion of remedies requirement has not
been met with regards to the alleged violation of Article 7.
52. With respect to the allegation on the violation of Article 14 on the right to property,
on the substantive demand of the Victim for asserting title over the property, the
Complainant submitted that the matter was exhausted with a favourable decision
reached on 08 July 2008. Since it was the Supreme Court that reversed this decision,
the Victim may not have appealed on the subject to the Supreme Court itself. It is
possible that the civil suit involving the Victim’s claim for asserting title over the
property itself may not be amenable to be taken for review before the Constitutional
Council. Yet given that what led to the Supreme Court’s decision recanting the
decision of 08 July 2008 on suit no. 127/07 was the exercise by the Attorney General
of the special prerogative power under Law no. 22/07 and Decree-Law no. 1/05, the
Victim, as suggested in the Complainants submission, could have filed a
constitutionality application on the Attorney General’s special prerogative power,
which, if successful, could have the effect of setting aside the Supreme Court’s
decision in suit no. 159/09 and affirming the lower court decision on suit no. 127/07.
53. In the present case, the Victim did not refer the matter on the unconstitutionality of
the laws in question to the Constitutional Council. No explanation is availed on why
the Victim, despite having sought to take the matter to the Constitutional Council,
did not actually pursue it. However, in other Communications on file with the
Commission, the Constitutional Council received and decided cases from
individuals.17
54. In the light of this failure of the Victim with no indication that a redress from the
Constitutional Council was not possible or ineffective, the Commission finds on the
allegation of violation of Article 14 that Article 56(5) of the African Charter has not
been met.
55. Article 56(6) of the African Charter provides that the Commission shall consider
Communications which “are submitted within a reasonable period from the time
See Communication 460/13 – Francisco Filipe Machado Vasco Mboia Campira (represented by Professor Dr.
Gilles Cistac) v. the Republic of Mozambique
17
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