CRPD/C/18/D/22/2014 B. Committee’s consideration of admissibility and the merits Consideration of admissibility 7.1 Before considering any claim contained in a communication, the Committee must decide, in accordance with article 2 of the Optional Protocol and rule 65 of its rules of procedure, whether the case is admissible under the Optional Protocol. 7.2 The Committee has ascertained, as required under article 2 (c) of the Optional Protocol, that the same matter has not already been examined by the Committee nor has it been or is it being examined under another procedure of international investigation or settlement. 7.3 The Committee notes the State party’s submission that the communication should be found inadmissible under article 2 (d) of the Optional Protocol on the grounds of failure to exhaust domestic remedies. The State party noted in particular that the author had not submitted his case to the domestic courts under the Basic Rights and Duties Enforcement Act. The State party also noted that the author did not initiate civil proceedings to request compensation for damages and harm. In that regard, the Committee notes the author’s submission that the possibility of civil action and private prosecution do not constitute effective remedies in his case. The Committee also notes that the author submitted a complaint to the police on the day that he was attacked, namely, 10 April 2010; that the prosecution was withdrawn under section 98 of the Criminal Procedure Act after the author testified that the accused person was not one of his attackers; and that, since then, the author has never been informed of any new additional steps taken by the authorities to investigate the case and bring the culprits to justice. The Committee recalls that, under Tanzanian criminal procedure, the magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person, including the victim.23 However, in cases of violations of such gravity as those of which the author has been victim, the primary responsibility to prosecute lies in the hands of the authorities of the State party, 24 which have a non-delegable duty and obligation to investigate, prosecute and punish perpetrators.25 7.4 The Committee notes that, on 20 March 2009, other victims of similar violent acts brought their case to the Constitutional Court of the United republic of Tanzania under the Basic Rights and Duties Enforcement Act, and that, at the time of the examination of the present complaint more than eight years later, the matter has still not been heard. The Committee also notes that the lengthy proceedings initiated by the author before the judicial authorities have not had any result to date. In that connection, the Committee notes the difficulties faced by the High Court to compose a bench of three judges to decide on the merits of each application submitted under the Basic Rights and Duties Enforcement Act. In such circumstances, the Committee does not find it reasonable to require that the author should have gone to court to initiate additional proceedings of unpredictable duration, such 23 24 25 Jamahiriya, Views adopted on 24 October 2007, para. 4; and No. 1295/2004, El Alwani v. Libyan Arab Jamahiriya, Views adopted on 11 July 2007, para. 4; and Committee on Enforced Disappearances, communication No. 1/2013, Yrusta and del Valle Yrusta v. Argentina, Views adopted on 11 March 2016, para. 10.1. See United Republic of Tanzania, Criminal Procedure Act, sect. 99 (1): “Any magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person, but no person other than a public prosecutor or other officer generally or specially authorized by the President in this behalf shall be entitled to conduct the prosecution without such permission.” Ibid., sect. 90, which states that the Director of Public Prosecutions has the duty: “(a) to institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed by that person; (b) to take over and continue any criminal proceedings that have been instituted or undertaken by any other person or authority; and (c) to discontinue any criminal proceedings instituted or undertaken by him or any other authority or person. Article 59B (2) of the Constitution of the United Republic of Tanzania (1977) states that “The Director of Public Prosecutions shall have powers to institute, prosecute and supervise all criminal prosecutions in a country.” See also the National Prosecution Services Act (2008). See, for example, Greco v. Argentina, para 51; and Sequeira Mangas v. Nicaragua. 7