CRPD/C/20/D/23/2014 4.4 The State party refutes the author’s allegations about its failure to take action. It submits that the investigation into the attack against the author is ongoing and that efforts are being made to locate and arrest the assailants and bring them to justice. It considers that the communication is based on an erroneous belief that the State party has failed to act. 4.5 As regards the author’s argument that he has been unable to pursue and initiate a private prosecution as this is not provided for by Tanzanian criminal law, the State party submits that such a possibility exists under section 99 of the Criminal Procedure Act, and that there is no evidence that the author attempted to initiate this procedure and failed. 4.6 The State party further submits that the Basic Rights and Duties Enforcement Act provides for a procedure for the enforcement of constitutional rights. It notes that the author failed to exhaust this remedy, which provides for redress when the basic rights of an individual have been violated by the State party’s failure to investigate a complaint effectively. 4.7 The State party submits that domestic courts still have not adopted a final decision on the author’s case. It therefore reiterates that the author’s communication should be held inadmissible for non-exhaustion of all available domestic remedies in regard to the complaints that he has brought before the Committee. Author’s comments on the State party’s observations on admissibility 5.1 On 11 May 2015, the author transmitted his comments on the State party’s observations on admissibility. He submits that the exhaustion of domestic remedies rule should never be used as a protective shield by States that have not established a suitable environment for promoting, protecting and preserving the rights of its individuals. 5.2 In that connection, the author refers to the jurisprudence of the African Commission on Human and Peoples’ Rights,13 according to which three major criteria can be deduced from the practice of the Commission in determining the exhaustion of local remedies rule, namely that the remedy must be available, effective and sufficient. The Commission also states that a remedy is considered available if the petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success, and it is found to be sufficient if it is capable of redressing the complaint. The author also refers to the jurisprudence of the European Court of Human Rights,14 according to which applicants are only required to exhaust domestic remedies which are available in theory and in practice at the relevant time and which they can directly institute themselves, which means that the remedies must be accessible, capable of providing redress in respect of their complaints, and offering reasonable prospects of success. Where domestic remedies are non-existent, or unduly and unreasonably prolonged, or unlikely to bring effective relief, a resort to international measures is required. The author considers that this is the case for the acts of murder and attacks to persons with albinism, which are systemic and continuous in the State party, amounting to a grave violation of their rights that remains unpunished. 5.3 As to the State party’s submission that three suspects were arrested on 15 October 2011, the author emphasizes that, following the withdrawal of the matter by the prosecutor for an alleged lack of evidence to incriminate the culprits, the State party did not take any further action to investigate the author’s case. The author therefore considers that the State 13 14 Jawara v. Gambia (communication No. 147/95-149/96), paras. 31–32. Sejdovic v. Italy, Grand Chamber (application No. 56581/00), judgment of 1 March 2006, para. 31: “The Convention allows the Contracting States considerable discretion as regards the choice of the means calculated to ensure that their legal systems are in compliance with the requirements of article 6, while at the same time preserving their effectiveness. The Court’s task, however, is to determine whether the result called for by the Convention has been achieved. In particular, the resources available under domestic law must be shown to be effective …”; and para. 37: “The Court observes, however, that in its decision on the admissibility of the application it dismissed an objection by the Government that domestic remedies had not been exhausted, finding that the remedy in question would have had little chance of success and that the applicant would have encountered objective difficulties in using it. The Court sees no reason to revise that conclusion.” 5