Universal-Womens-accesss-to-justice-Publications-Practitioners-Guide-Series-2016-ENG

300 PRACTITIONERS GUIDE No. 12
complainant must first demonstrate that he or she did not
obtain satisfaction from this body. 749
i) Exceptions to the principle
There are situations in which an applicant is not required to
exhaust domestic remedies. In general, this arises where the
remedy lacks effectiveness, adequateness, or due process of
law characteristics. Below we list the most typical cases of
exception to the rule of the exhaustion of domestic remedies,
although other situations may also arise where exhaustion of
domestic remedies is not required. A remedy need not be
pursued:
if it can be incontrovertibly proven that it was bound to
fail. 750 This might occur when the remedy is subject to a
consistent practice or jurisprudence, or the legal system
has a normative framework, which makes it virtually
impossible for the individual case to succeed. 751
If the legal system as such fails to provide
conditions for the effectiveness of the remedy, e.g.
because of lack of effective investigation, or where it is
a consistent practice not to follow or implement court
orders in particular situations, or where there is a
749
Article 14.5 ICERD. See also, Rule 91(e), CERD Rules of Procedure.
750
See, Na v. United Kingdom, ECtHR, op. cit., fn. 309, para. 89;
Kleyn and others v. the Netherlands, ECtHR, GC, Applications nos.
39343/98-39651/98-43147/98-46664/99, Judgment of 6 May 2003,
para. 156; Salah Sheekh v. the Netherlands, ECtHR, op. cit., fn. 317,
paras. 121-124;
751
See, Salah Sheekh v. the Netherlands, ECtHR, op. cit., fn. 317,
paras. 121-124; Kleyn and others v. the Netherlands, ECtHR, op. cit.,
fn. 1317, para. 156; Johnston and others v. Ireland, ECtHR, Plenary,
Application No. 9697/82, Judgment of 18 December 1986, para. 44;
Open Door and Well Woman v. Ireland, ECtHR, op. cit., fn. 1282,
paras. 47-52; Keegan v. Ireland, ECtHR, op. cit., fn. 200, para. 39.