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ii. The effectiveness and sufficiency (or adequacy) of the remedy at the Cour de
Cassation
108.
The Court is of the view, same as the Commission, that a remedy is deemed
effective if it offers prospects of success 9 , is found satisfactory by the complainant or is
capable of redressing the complaint.
109.
It should be noted that the remedy envisaged under Rule 40 (5) of the Rules of the
Court are considered in the application submitted to the African Court.
In the present
matter, the Applicant essentially prays the Court to declare that the Burkinabe Laws on the
basis of which he was held criminally and civilly liable are in breach of the right to freedom
of expression. The issue therefore is to ascertain if the Cour de Cassation could, under
Burkinabe Law, rule on such a request and thus ultimately overturn the laws in question.
110.
As the Court had already noted in the matter of Norbert Zongo and Others v.
Burkina Faso "... in the Burkinabe Legal system, the appeal to the Cour de Cassation is a
remedy intended to repeal, for violation of the law, a judgment or a ruling delivered as a last
resort (criminal procedure Code of 21 February 1968, Article 567 et seq). The appeal does
not therefore allow for the law itself to be annulled but only applies to the Judgment in
question, either due to wrongful application or interpretation of the law. Far from causing an
annulment of a law, the Cour de Cassation is on the contrary charged with ensuring the
·strict observance of the law by other lower domestic courts.
111.
In such circumstances, it is clear that the Applicant in the instant case was not in a
position to expect anything from the Cour de Cassation in relation to his request for the
annulment of the Burkinabe laws, in pursuit of which he was convicted.
112.
Indeed, in the Burkinabe judicial system, it is the Constitutional Council that is
responsible for overseeing compliance of such laws with the Constitution, including in the
provisions of the latter which guarantee human rights (Article 152 of the Constitution). In
addition, Article 157 of the Constitution which provides for the institutions entitled to bring
matters before the Constitutional Council for the purpose of detennining the
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