iii. Exception to the obligation of legal remedies exhaustion

According to the case-law of the Chamber, extraordinary legal remedies must be exhausted.³⁰⁷⁵ In the beginning, the “revision” was treated as one of such extraordinary legal remedies,³⁰⁷⁶ whilst at a later point the Chamber regarded it as an effective legal remedy if the applicant had a legal right to pursue it.³⁰⁷⁷ If the applicant also intends to avail himself/herself of the right to revision under

Article 237, paragraph 3 of the Civil Procedure Code of the Federation of BiH or Republika Srpska, the application filed with the Human Rights Commission within the BiH Constitutional Court shall, in any event, be admissible.³⁰⁷⁸ The legal remedies regarded as ineffective are the following ones: request for protection of lawfulness under the Criminal Procedure Code and Civil Procedure Code,³⁰⁷⁹ request for an extraordinary review of judgment under the Criminal Procedure Code or Law on Administrative Disputes,³⁰⁸⁰ request for protection of constitutional rights and freedoms under Article 65 of the Law on Administrative Disputes of the Republika Srpska,³⁰⁸¹ or request for renewal of the proceedings under the Criminal Procedure Code³⁰⁸² or Law on Minor Offence Procedure³⁰⁸³ and the extraordinary legal remedies in which admissibility is at the discretion of the competent authority, such as the pardon plea.³⁰⁸⁴

Furthermore, not all legal remedies against violations of human rights and fundamental freedoms which are “covered” by the law are regarded as effective legal remedies. In the Case Šećerbegović et al., the Chamber absolved the applicant from the obligation to exhaust all legal remedies, since the violation of his rights directly derived from the law. Therefore, if the applicant had instituted proceedings, the courts could not have taken a decision other than that as provided for by law. There was no practice involving an individual challenging a law before the ordinary courts, and the respondent party did not present any case pointing to the effective exhaustion of legal remedies in practice.³⁰⁸⁵ However, the applicant did not avail himself of an appeal, i.e., action for silence of the administration (administrative authorities before which the applicant had initially tried to effectuate his claim). However, the chances are quite slim that the administrative court in administrative dispute proceedings would take a favourable decision for the applicant, since the applicant would have to face the problem of constitutionality of the law. It is very difficult to keep a balance between, on the one hand, the necessity to ensure effective legal protection and the obligation of “exhausting domestic legal remedies” in each particular case and on the other hand other numerous factors in a “young” legal state implying the exhaustion of legal remedies. However, cases such as Šećerbegović et al. provide an opportunity to request the lower instance courts for didactical reasons to directly apply the ECHR as stipulated by the BiH Constitution. If the ordinary courts were not forced to face unconstitutional laws in cases they deal with, they would not have an opportunity to acquire knowledge of the significance of human rights and freedoms within the “new” legal system in Bosnia and Herzegovina, which have a priority over all other legal acts. In the Pilipović case, the Chamber followed this practice: despite a number of decisions of the Supreme Court of the FBiH whereby it quashed lower-instance decisions in order to point to the lower-instance courts’ obligation to apply the ECHR as a priority, the Chamber, taking account of the linguistic meaning of that provision, did not want to oblige the applicant to exhaust further legal remedies.³⁰⁸⁶ Finally, such cases, in an “ideal atmosphere of rule of law”, end up before the Constitutional Court through a “referral” of the case (Article VI.3(c) of the BiH Constitution) or through an appeal (Article VI.3(a) of the BiH Constitution). However, one may say that the Chamber , with the aim of providing prompt and effective legal protection in such cases, used to take final decisions by itself and, thus, deprived the national institutions of the possibility of facing the problem of providing an effective legal protection. The practice relating to this was slightly adjusted at a later point. In a case, the Human Rights Commission within the BiH Constitutional Court rejected an application as inadmissible on the grounds that the before addressing the Chamber the applicant should have requested that the relevant law provisions be interpreted by the ordinary courts in accordance with the ECHR standards.³⁰⁸⁷

The third group of ineffective legal remedies includes the cases implying an unreasonable length of proceedings. If the applicant claims that the length of proceedings are excessive, the Chamber is entitled to take a decision on the merits with regard to the allegations. The fact that the proceedings are still pending does not create an obstacle to take a decision on the merits, since the allegations on such a violation cannot be redressed by the adoption of a final decision by the ordinary authorities/courts.³⁰⁸⁸