Basic elements of the principle of exhaustion of legal remedies

The appellant must reach a so-called final decision (abschließende Entscheidung). A final decision represents a response to the last legal remedy used which is effective and adequate to examine a lower instance decision both on a point of fact and law. Whether a legal remedy is effective depends on each particular case. The appellant bears the burden of proof.²⁹⁹⁹ The appellant can establish the ineffectiveness of a legal remedy in two directions: the legal remedy is absolutely ineffective (or does not exist at all), or the legal remedy is ineffective in the particular case. The final decision on the (in)effectiveness of a legal remedy remains with the discretion of the Constitutional Court. In so considering, the Constitutional Court starts from the point of view of the objective observers. Therefore, a legal remedy is considered as ineffective if it is objectively and manifestly inadmissible. The effectiveness depends on whether the appellant, taking into account the legal situation at the moment of pursuing a legal remedy, started from the point that the legal remedy was inadmissible.³⁰⁰⁰ In this connection, the principle ignorantia iuris nocet applies: the appellant bears the burden of ignorance of the law.³⁰⁰¹ The doubt itself about the effectiveness of the legal remedy does not exempt the appellant from his/her duty to exhaust that legal remedy.³⁰⁰² Yet, an individual must not be overburdened in determining the most effective way of exercising his/ her rights.³⁰⁰³ The rules of legal remedies exhaustion should be interpreted in a flexible manner so as to take into account the particular circumstances of the appellant.³⁰⁰⁴ If the appellant could not be certain of the effectiveness of the legal remedy he used, he cannot bear the burden of it if the legal remedy proved to be ineffective in a particular case.

A decision whereby a legal remedy has been rejected because the appellant did not meet the legal requirements with regard to the legal remedy (time limit, payment of fees, form or fulfilment of other legal obligations) cannot be considered as final. The legal remedy must be exhausted not only formally but also substantially. Therefore, such legal remedies do not restart running of the 60-day time limit.³⁰⁰⁵

The appellant nevertheless has the opportunity to establish a violation of his/her right of access to court before the Constitutional Court if he/she can prove that the legal remedy has been rejected in violation of the positive legal regulations, i.e., contrary to the standards of the BiH Constitution. If such an allegation is founded, the decision of the lower-instance court shall be quashed and the case will be referred back for new proceedings and a decision, which, this time, will be taken on the merits of the case.³⁰⁰⁶ Otherwise, the appeal shall be rejected as manifestly ill-founded or shall be dismissed on the merits of the case.³⁰⁰⁷ Although such court practice is not incorrect in terms of formal requirements, the question arises as to whether the appellant bears an excessive burden in such proceedings. If an ordinary court rejects a legal remedy in an unlawful manner, the appellant must exhaust all further available legal remedies in order to redress the error. In the event that a regular way does not offer him/her a successful result, the matter shall end up being submitted to the Constitutional Court, which shall take a decision on the merits ordering the ordinary court to reopen the proceedings starting from the point that the legal remedy is admissible. These proceedings may last for years. In light of the right to trial within a reasonable time under Article 6 of the ECHR, it would be more balanced if the Constitutional Court, at least in the proceedings in which there is a decision on the merits by the ordinary courts, establishes that the later appellate courts unlawfully deprived the appellant of his/her rights and concludes the case so as to take a decision on the merits of the case (Article 64, paragraph 2 of the applicable Rules of the BiH Constitutional Court).

A substantive exhaustion of legal remedies also implies that the appellant has already presented the allegation or allegations being the subject of the proceedings of the Constitutional Court before the ordinary courts. Otherwise, the courts would not have had an opportunity to take a view on it and provide the appellant with legal protection. Nevertheless, such a court decision may be procedurally treated as final. However, within the meaning of the principle of exhausting legal remedies, it cannot be taken as an adjudged matter in respect of the appellant’s allegations (which were submitted to the Constitutional Court), since the courts did not have an opportunity to deal with the matter.³⁰⁰⁸

An incorrect legal remedy instruction indicated in the challenged decision does not automatically mean that the legal remedy, which is not indicated in the legal remedy instruction and which does exist (as effective), should not be exhausted. The principle ignorantia iuris nocet³⁰⁰⁹ applies again. The appellant may not rely on the allegation that the incorrect legal remedy instruction misled him/her and that this was the reason why he/she failed to exhaust all effective legal remedies.³⁰¹⁰ The Constitutional Court has made exceptions to this rule. In Case No. U 22/00, the Constitutional Court took into account the fact that the appellant did not have a legal representative and that the appellant, as a layman, did not have knowledge of the relevant regulations. However, a decisive fact was the lack of legal remedy instruction in the challenged judgment, which rendered the access to the Supreme Court of the Republika Srpska fully ineffective.³⁰¹¹

If the proceedings are terminated by a final decision, and the final decision has not been served on the party, the time limit to file an appeal with the Constitutional Court starts running at the moment when the decision is brought to the appellant’s knowledge in another manner.³⁰¹² This practice raises doubts for two reasons: on the one hand, if the final decision, whereby the proceedings of the ordinary court were completed, was not delivered to the party, the decision cannot become formally final and binding, nor can the time limit to file an appeal with the Constitutional Court start running. On the other hand, the question arises as to how the appellant can challenge the decision if he/she was informed of it in another manner, which means that the decision was not delivered to him/her, since it is assumed that he/she is not aware of its precise content but only of the fact that it has been rendered and that the matter was decided by the final decision. Therefore, this latter argument could not be taken as relevant only if the decision was not delivered to the appellant but the reasoning of which was brought to his/her knowledge in another manner.³⁰¹³