CRC/C/88/D/104/2019
Furthermore, the Committee notes the State party’s argument that legal avenues were
available to the authors in the form of an environmental writ of amparo under article 43 of
the Constitution as well as in the form of a writ of redress for a collective environmental
damage under the General Environment Act. It also notes the State party’s argument that the
authors could have approached the Office of the Chief Public Defender and the Office of the
Ombudsperson for the Rights of Children and Adolescents in filing such environmental
actions under the General Environment Act, and that legal aid would be available for such
litigation. The Committee notes the authors’ arguments that the defence of arraigo under
article 348 of the Code of Civil Procedure would bar the authors domiciled abroad from
pursuing any kind of litigation in the State party. Nevertheless, it notes that the State party
has refuted that claim, and that the authors have not provided any examples of non-domiciled
plaintiffs being barred from accessing the specific remedies referred to by the State party in
filing proceedings similar to the remedies sought by the authors in their specific case. The
Committee also notes the authors’ argument that the Office of the Chief Public Defender and
the Office of the Ombudsperson for the Rights of Children and Adolescents are discretionary
remedies and therefore unlikely to be effective. Nevertheless, it notes that the authors did not
make any attempt to engage these entities in filing a suit on their behalf, and it considers that
the fact that the remedy may be discretionary in itself does not exempt the authors from
attempting to engage these entities in pursuing a suit, especially in the absence of any
information that would demonstrate that this remedy has no prospect of success and in light
of existing suits filed on the issue of environmental degradation in the State party. In the
absence of any further reasons from the authors as to why they did not attempt to pursue these
remedies, other than generally expressing doubts about the prospects of success of any
remedy, the Committee considers that the authors have failed to exhaust all domestic
remedies that were reasonably effective and available to them to challenge the alleged
violation of their rights under the Convention.
10.19 Regarding the authors’ argument that foreign sovereign immunity would prevent them
from exhausting domestic remedies in the State party, the Committee notes that the issue of
foreign sovereign immunity may arise only in relation to the particular remedy that the
authors would aim to achieve by filing a case against other respondent States parties together
with the State party in its domestic court. In this case, the Committee considers that the
authors have not sufficiently substantiated their arguments concerning the exception under
article 7 (e) of the Optional Protocol that the application of the remedies is unlikely to bring
effective relief.
10.20 The Committee notes the authors’ argument that pursuing remedies in the State party
would be unreasonably prolonged. It also notes that, while the authors cite some examples of
environmental cases in which the State party’s courts took several years to reach a decision,
they do not provide any further specific information on the length of such proceedings in the
State party. It also notes that the State party likewise provides examples of cases of
environmental litigation in the State party which were resolved within a reasonable time
frame. The Committee concludes that, in the absence of any specific information from the
authors that would justify that domestic remedies would be ineffective or unavailable, and in
the absence of any attempt by them to initiate domestic proceedings in the State party, the
authors have failed to exhaust domestic remedies.
10.21 Consequently, the Committee finds the communication inadmissible for failure to
exhaust domestic remedies under article 7 (e) of the Optional Protocol.
11.
The Committee therefore decides:
(a)
Protocol;
That the communication is inadmissible under article 7 (e) of the Optional
(b)
That the present decision shall be transmitted to the authors of the
communication and, for information, to the State party.
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