ii. Basic elements of the principle of exhaustion of legal remedies

In deciding the issue as to whether an applicant has exhausted his/her legal remedies or not, the context of human rights protection must be taken into account. Consequently, the rule in question must be interpreted with a certain degree of flexibility and without unreasonable formalism. The rule in question is not absolute in nature, nor can it be applied automatically. Quite the contrary, the circumstances of each particular case must be taken into account so that not only is the issue of the formal existence of certain legal remedies in the national legal system important, but also their functioning in the general legal and political context. Finally, the personal situation of the applicant is also significant.³⁰⁴³ Furthermore, according to the generally recognised rules of international law, there may be special circumstances exempting the applicant from his/her obligation to exhaust all of the domestic legal remedies at his/ her disposal. Moreover, the obligation of exhausting legal remedies may not apply to the cases where the constitutional practice involves a reiteration of actions or the adoption of administrative acts that are inconsistent with the ECHR, whereas the State authorities tolerate them. This, in fact, makes the proceedings useless or ineffective.³⁰⁴⁴ The fact that a decision on one or more of the legal remedies used has not been taken yet and that theoretically the applicant has other legal remedies at his/her disposal (for example, a request for the reopening of proceedings) does not create obstacles to the adoption of a decision on the merits if the circumstances of a particular case indicate that the applicant’s prospects of success seem hopeless because he/she has been trying for too long to exercise his/her rights and there is no justified or apparent reason for non-adoption of a final decision by the courts.³⁰⁴⁵ It is not possible to surrender the exhaustion of legal remedies if the used legal remedy does not have a suspensive effect.³⁰⁴⁶ Also, it is not possible to surrender the exhaustion of legal remedies if an action brought before the administrative court for silence of the administration implies considerable costs of the proceedings.³⁰⁴⁷ If a person is deprived of liberty “incommunicado”, that person cannot be considered to have an effective legal remedy at his/her disposal.³⁰⁴⁸ A claim for damages for unlawful detention does not have to be the subject of consideration by the national authorities if they constantly reject appeals filed for unlawful detention.³⁰⁴⁹ Moreover, legal remedies cannot be considered effective if the competent courts continuously – by referring to the practice of higher-instance courts – decline their jurisdiction to take a decision on the case.³⁰⁵⁰ Because of this the Chamber did not request the Islamic Community of Bosnia and Herzegovina to formally address the competent administrative authorities of the Republika Srpska before addressing the Chamber in order to obtain a permit to rebuild a number of destroyed mosques. The reason was that the religious facilities were being destroyed with a discriminatory aim on the one hand, and that, meanwhile, the competent administrative authorities were allocating such construction sites to other persons or entities or were allocating them for unlawful use or for use other than the one designated or their purpose was changed in urban development plans. Finally, a proof of ineffectiveness of legal remedies – requirements for the issuance of building permits for the reconstruction of religious facilities – is the fact that the Chamber’s order with regard to a building permit in the case of a destroyed mosque in Banja Luka was ignored.³⁰⁵¹

Therefore, the remedies available to an applicant must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness.³⁰⁵² A de lege lata non-existing legal remedy does not have to be exhausted. Up to 8 May 2002, when the Court of Bosnia and Herzegovina commenced, there had been no effective legal remedy for damages caused by the administrative acts of the institutions of Bosnia and Herzegovina.³⁰⁵³ From that moment on, the applicants, before addressing the Chamber, had to address the Court of Bosnia and Herzegovina and request compensation for damage regardless of the fact that this Court did not have a typical civil department.³⁰⁵⁴

The case of M.J. (CH/96/28) is an evident example of a legal remedy existing in theory but that is ineffective in practice. In particular, the applicant, who blindly trusted the functionality of the national legal system, tried 7 times without success to have enforced a final and legally binding decision, wherein the eviction of an unlawful occupant of the apartment was ordered. Even when a new unlawful occupant of the apartment replaced the former one, the applicant tried to have a new enforceable decision.³⁰⁵⁵ On the other hand, the cases relating to double occupancy rights (occupancy right holder and temporary occupant of the apartment) were questionable, where an effective legal remedy was available in theory to the applicants, who had filed claims for repossession of apartments based on new law provisions, but in practice they did not comply with the prescribed preclusive time limitations. The Chamber held that these remedies were ineffective in practice.³⁰⁵⁶

The applicant must submit evidence proving that he/she has exhausted all legal remedies, or that the legal remedies have not been exhausted through no fault of the applicant.³⁰⁵⁷ In case of doubt, the applicant must clarify in the civil proceedings that he/she had acted lawfully, i.e., that the legal remedies were not exhausted through no fault of the applicant.³⁰⁵⁸ If the effectiveness of a legal remedy is questionable, the applicant must try to exercise his/her rights before the competent authority.³⁰⁵⁹ Arbitrary claims about the ineffectiveness of a legal remedy,³⁰⁶⁰ lack of confidence in the competent authorities,³⁰⁶¹ or the applicant’s claim about his/her personal unfavourable financial situation does not absolve the applicant from the exhaustion of a legal remedy.³⁰⁶² If a legal remedy is filed with a non-competent authority, the applicant cannot claim that he/she has exhausted the legal remedy if the law does not oblige the non-competent authority to refer the case to the competent authority.³⁰⁶³ If the applicant claims that the legal remedy provided for by law is not effective, generally or in his/her case, in practice the applicant must submit evidence in support of such a claim. Likewise, if the applicant fails to pursue a legal remedy within the time limit as stipulated by the law, the legal remedy shall not be considered as having been exhausted unless the applicant submits evidence proving that the exhaustion of the legal remedy is related to a strict time limit which renders it ineffective in practice.³⁰⁶⁴

The respondent party bears the burden of proving that there was a remedy available to the applicant both in theory and in practice at the relevant time and offered reasonable prospects of success (in terms of effectiveness).³⁰⁶⁵ If the respondent does not submit evidence proving this, the application shall be declared admissible even in the case of doubt.³⁰⁶⁶ However, if the respondent party submits evidence proving that there is an effective legal remedy, the applicant must submit evidence proving that he/she has exhausted it, or that the legal remedy was not effective or for some reason, inadequate or ineffective in the particular circumstances, and that therefore there was no requirement to pursue it.³⁰⁶⁷ Finally, the Chamber may reject an application for non-exhaustion of legal remedies, without observations submitted by the respondent party, if the applicant fails to provide information as to why he/she considers an available legal remedy as being ineffective.³⁰⁶⁸ The reason to conclude that a legal remedy is ineffective exists if an institution, despite indications of the failures by representatives of the State and damage caused to the applicant, fails to take any action or fails to undertake necessary investigation or fails to provide protection in any other manner. In such circumstances, the burden of proof remains with the respondent party to show what has been done in response to the scale and seriousness of the matters complained of.³⁰⁶⁹ Therefore, by way of example, if a police officer alleges that other police officers maltreated him, such allegations constitute a de facto report to the competent institution. If, in addition to this, marks of physical injuries are visible on his body, the officers of the Ministry of Interior must consider such allegations as a reason for opening ex officio an investigation including the competent public prosecutor’s office. An example of such failure to act is the case where State authorities remain completely passive towards numerous allegations of bad conduct or damage caused by State agents, i.e., the circumstances which may absolve the applicant from the request to exhaust domestic remedies³⁰⁷⁰ capable of ensuring the protection of rights when it came to the conduct of the public authority at the lowest level. Therefore, the applicant’s case was not an exception. Taking this into account, the Federation had to submit evidence proving, for example, through a certain number of court cases, that legal remedies available in theory were effective in practice. This time they fell short of doing so.³⁰⁷¹ In Case No. CH/98/1027 et al.-A&M, the Chamber additionally established that at the time when the applicant had been deprived of liberty, the relevant legal provisions were declared invalid, while the Federation’s conduct did not leave an impression that the remedies available in theory were effective in practice.³⁰⁷²

The exhaustion of legal remedies must be substantive. The complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the ECHR should have been used.³⁰⁷³

Otherwise, if there is not an effective legal remedy available under the domestic legal system, which is to be exhausted by the applicant, the Human Rights Chamber is entitled, in the event that a violation of the rights and freedoms laid down in Annex 6 has been found, to order payment of compensation for damage for the established violation. Therefore, a claim for monetary compensation or other relief for violation of human rights and freedoms should form an integral part of the decision whereby the violation has been established, not a separate claim.³⁰⁷⁴