Cheffi Brenner, Michel Doucin, Nantes, January 2006
How can the principle of exhaustion of all domestic remedies be reconciled with the need to respond rapidly to grave situations?
As such, the question points up a potential contradiction: justice is often slow; to wait for the exhaustion of all procedures of recourse at the national (or regional) level could result in very long delays which deprive the victim of any real possibility of redress. Moreover, some situations need urgent answers. What is to be done when such a risk is present ?
It has already been indicated that the rule of the exhaustion of all domestic remedies prevails in the rules as regards the functioning of Committees receiving communications and that international law (and a fortiori when it is only “quasi-justice”) which is subsidiary by definition: it plays only the role of last resort.
However, it is necessary to provide for mechanisms concerning cases in which national justice is not functioning or functions too slowly. In this situation it is appropriate to provide for exceptional procedures by which these communications can be examined before exhausting all domestic remedies. These exceptional cases should be provided for by well-established procedural guarantees (Philippe Texier), but it is necessary for the mechanism to be limber enough. (Léopold Donfack Sokeng)
Several solutions are possible, as shown in the procedures already in existence before certain United Nations jurisdictions, the CAT (art.20) and the optional protocol to the CEDAW (art. 8 and 9). “Under the innovative Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, the Committee can, if it receives reliable information, investigate countries where there are grave or systematic violations. This power should be included in our Optional Protocol for particularly grave abuses of economic, social and cultural rights. I hope you will also look at ways the expert Committee could respond to emergency situations and to ensure that its decisions on complaints are in fact implemented by the government concerned.” (Nicholas Howen) The exhaustion of all domestic remedies rule also exists in the African Charter on Human and Peoples’Rights system but it can be put aside in cases of national recourses being too long. (Léoplod Donfack Sokeng)
Several possibilities have been evoked :
In the case of apparently serious allegations of grave and systematic violations of rights, the Committee could opt to take up the case on its own.
It could then establish a close relation with the government concerned to deal with grave and urgent situations and/or take the necessary protective measures.
A mechanism allowing for protective measures could be put into place in cases where there exists a risk of irreparable damage for the victim. The suspension or the later confirmation of these protective measures would be in function of an in-depth examination of the case.