Exhaustion of legal remedies

Human rights presuppose effective legal protection. Those rights must be real and effective both in law and in practice, not theoretical and illusory. More precisely, legal remedies aimed at the protection of human rights must be physically available, and they must not be disturbed by acts, omissions, delays or negligence by the State authority and must be capable of protecting the rights in question.²⁹⁹³ Both the Constitutional Court and the Human Rights Chamber must, before taking a decision on merits, decide whether the legal system provides for effective legal remedies and whether they have been exhausted in each particular case before the appellant’s address to the highest judicial institution.²⁹⁹⁴ Therefore, before addressing the Constitutional Court and Human Rights Chamber, the appellant has to use legal remedies available within the legal system, if they are of such a nature as to redress the violation of the appellant’s rights. If the appellant fails to exhaust all effective legal remedies, his/her appeal or request shall be inadmissible.²⁹⁹⁵ The fact that the appellant is not allowed to address directly to the Constitutional Court and Human Rights Chamber may be explained by the fact that the lower-instance authorities and institutions should be given an opportunity within the internal legal system to redress possible violations of human rights and freedoms under international conventions and the BiH Constitution according to the general rules of international law.²⁹⁹⁶ The lower and the earlier the institution which can provide the appellant with the protection, the better the appellant’s prospects. Finally, the principle of exhaustion of legal remedies obliges the lower-instances authorities to deal with the legal protection and, at the same time, to disburden the higher-instances which, otherwise, would not have the possibility of dealing with the issues of violation of human rights and freedoms.

If the appellant fails to pursue a legal remedy, his/her appeal or request may be rejected for two possible reasons. If the appellant pursued an effective legal remedy but did not wait for its result, the appeal or the request must be rejected as being premature. The appellant has a new possibility to file an appeal with the Constitutional Court after the conclusion of the proceedings. Therefore, the aim of the decision on the appeal or request filed in a premature fashion is to show that other proceedings are still pending, not to show that the appellant failed to exhaust all legal remedies. Accordingly, the inadmissibility of the appeal is of a temporary nature. However, if the appellant fails to pursue an effective legal remedy, and the time limit to pursue it has expired, then the opportunity to file an appeal before the Constitutional Court is definitely excluded.

Accordingly, in Case No. U 24/00 the Constitutional Court terminated the proceedings pending a decision by the Supreme Court of the Republika Srpska instead of rejecting the appeal as inadmissible for non-exhaustion of legal remedies,²⁹⁹⁷ whereupon the Constitutional Court took a decision on the merits after the appellant submitted a supplement to the appeal that included the final decision of the Supreme Court of the Republika Srpska. In another case, the appeal was rejected as premature, since the proceedings before the ordinary courts were still pending.²⁹⁹⁸ The difference between these cases could be a positive conclusion to the following question: Is the final result of the proceedings before the lower-instance courts visible or not, and is the Constitutional Court aware of it or not?

The text below presents the extensive case-law of both courts with regard to the principle of exhaustion of legal remedies.