5. the wrong is due to an executive act of the government as such, which is clearly not subject to the jurisdiction of the municipal courts. Issues before the African Commission 49. The parties to the present case are in dispute over the question of the exhaustion of domestic remedies in Eritrea and it is therefore for the African Commission to make a determination on the matter. 50. On the one hand, the State argues that the stipulated requirement in Article 56.5 has not been fulfilled by the Complainant and that none of the above-mentioned exceptions should therefore apply. On the other hand, the Complainant alleges that the exception rule in Article 56.5 should apply. 51. Whenever a State alleges the failure by the Complainant to exhaust domestic remedies, it has the burden of showing that the remedies that have not been exhausted are available, effective and sufficient to cure the violation alleged, i.e. that the function of those remedies within the domestic legal 4 system is suitable to address an infringement of a legal right and are effective. When a State does this, the burden of responsibility then shifts to the Complainant who must demonstrate that the remedies in question were exhausted or that the exception provided for in Article 56.5 of the African Charter is applicable. Submissions by the Complainant 52. The Complainant in the present communication argues that domestic remedies are not available and notes that the fact that the victims have been held for over three years (since September 2001) incommunicado “is a manifestation of the fact that the administration of justice in Eritrea is extremely abnormal”. 53. The Complainant further points to the fact that Section 17 of the Eritrean Constitution provides safeguards against the arbitrary arrest and detention of persons, and the Government of Eritrea has 5 failed to abide by these safeguards. The Complainant claims that the “deliberate failure of the government to abide by its own Constitutional obligation shows that it is hopeless and impractical or unreasonable for the detainees to seize the domestic courts by way of habeas corpus”. 54. The Complainant further argues that the Executive Branch of Government in Eritrea interferes in the affairs of the Judiciary thus rendering the latter’s independence and effectiveness suspect. They cite the removal of the Chief Justice by the President of the Republic when the former allegedly requested the Executive not to interfere in the Judiciary. The Complainant noted that “if the Chief Justice could be removed from office for merely asking the Executive Branch of Government not to interfere with the independence of the Judiciary, what will happen to any judge who dares to order the release of the detainees marked out as ‘traitors’ and ‘State enemies’ by the highest authority, the President”? 55. The Complainant notes further that the human rights violations complained of are serious and massive and in terms of the jurisprudence of the African Commission, such violations do not necessitate the exhaustion of local remedies. 56. The Complainant concludes by stating that in fact, they had sent a writ of habeas corpus to the Minister of Justice requesting that the victims be brought to court but received no response from the Minister, and that they had requested to visit the victims but were not granted permission by the Responding State. Submissions by the State 57. The Respondent State in its submission maintains that the Eritrean Judiciary is independent and that the Complainant should have exhausted local remedies either directly or through local legal representatives. The Respondent State submits that it informed the Complainant that they should take the initiative to approach the courts directly in order to seek justice for the detainees but no such efforts were made by the Complainant.