The condition of prior exhaustion of domestic remedies

If a person wishes to bring a case before the ECHR for a violation of their rights, they must first exhaust all available domestic remedies.

This condition is essential to ensure compliance with the principle of subsidiarity in the European Convention on Human Rights, which states that States parties must protect human rights at national level before resorting to international bodies.


What domestic remedies must be exhausted?

Domestic remedies vary from country to country. In general, these are judicial remedies before the national courts. In France, for example, the remedies available before the Conseil d’Etat, the Cour de cassation or the Cour d’appel must in principle be exhausted before a case can be referred to the ECHR. However, there are exceptions to this rule, particularly where the domestic remedy is ineffective or insufficient.

How do you exhaust domestic remedies?

In principle, in order to exhaust domestic remedies, it is necessary to go to the end of the procedure, i.e. until all the competent courts have handed down their final decision. It is important to note that this condition also applies to extraordinary or non-mandatory appeals, such as appeals in cassation.

What are the consequences of failure to comply with the requirement to exhaust domestic remedies?

If a person applies to the ECHR without first exhausting domestic remedies, the Court may declare the application inadmissible for failure to comply with the admissibility requirement. Furthermore, even if the ECHR accepts the application, it may consider that the applicant’s rights have not been violated if a domestic remedy has been neglected.

The condition that domestic remedies must have been exhausted is an essential step in bringing a human rights case before the ECHR. This condition is intended to encourage the settlement of disputes at national level and to limit abusive recourse to international bodies.

Basis for the rule of prior exhaustion of available domestic remedies

his admissibility requirement is based on generally recognised principles of international law, as indicated in the text of Article 35: this obligation is part of customary international law, recognised as such by the case law of the International Court of Justice and also found in other international human rights treaties.

As the European Court of Human Rights plays a subsidiary role in relation to national systems for the protection of human rights, national courts must initially be given the opportunity to rule on questions of the compatibility of domestic law with the European Convention on Human Rights.

Article 35 § 1 concerns only domestic remedies; it does not require the use of remedies provided by international organisations.

On the contrary, if the applicant has already submitted the application to another procedure of international investigation or settlement, it may be rejected under Article 35 § 2 b) of the Convention.

However, the principle of subsidiarity may require the exhaustion of domestic remedies under which the domestic court had referred a question to the Court of Justice of the European Union for a preliminary ruling.

It is the Court that determines the internal or international nature of a given court or tribunal, taking into account all relevant factors, including its legal nature, the instrument by which it was established, its jurisdiction, its place in the existing judicial system and its funding.

Application of the rule of prior exhaustion of available domestic remedies

A flexible approach

The European Court of Human Rights has frequently stressed that this rule should be applied with a certain degree of flexibility and without excessive formalism, given the context of human rights protection. The Court tolerates that the final stage of domestic remedies is reached after the application has been lodged, but before it is called upon to rule on the admissibility of the application, and also considers that it would be too formalistic to require the persons concerned to use a remedy that even the supreme court of the country did not oblige them to exercise.

In one case, the Court was able to take into consideration the short time given to the applicant to respond by emphasising the ‘haste’ with which they had had to present their arguments.

Compliance with internal rules

Applicants must comply with the rules and procedures applicable under domestic law, otherwise their application risks being dismissed for failure to satisfy the requirement of Article 35.

Article 35 § 1 is not complied with where an appeal is not allowed because of a procedural error on the part of the applicant, and the Court must satisfy itself that those rules laid down pre-existing mandatory legal requirements deriving from well-established legislation or case-law.

However, where a reviewing court examines the merits of an appeal and considers it inadmissible, Article 35 § 1 will still be complied with.

The Court will also consider an available remedy to have been exercised even though a Constitutional Court has declared the remedy inadmissible, where the applicant has raised a sufficiently substantive complaint relating to an alleged violation of Convention rights.

This is also the case in respect of an applicant who has not complied with the formalities required by domestic law, if the substance of his or her application has nevertheless been examined by the competent authority, or in respect of an application which has been formulated in a very summary manner and is scarcely compatible with the legal requirements, but on the merits of which the court has given a ruling, even if only briefly.

If the applicant has more than one effective remedy, he is only obliged to use one of them; it is up to the claimant to select the remedy that is most appropriate in his case.

Grievance raised in substance

It is not necessary for the right enshrined in the Convention to be explicitly invoked in the domestic proceedings, provided that the complaint is raised ‘at least in substance’, that is to say, if the applicant has raised pleas of equivalent or similar effect based on domestic law, in order to have given the national courts the opportunity to remedy the alleged breach in the first place.

The fact that the national courts could, or indeed should, have examined the dispute under the Convention of their own motion cannot relieve the applicant of the obligation to raise the complaint first.

For domestic remedies to be duly exhausted, it is not enough for a breach of the Convention to be ‘self-evident’ from the facts of the case or from the applicant’s allegations; the applicant must have actually complained of a breach of his Convention rights, in a manner that leaves no doubt that the complaint subsequently submitted to the Court was indeed raised at domestic level.

Existence and adequacy of domestic remedies

Applicants are only required to exhaust domestic remedies that were available – which they can directly pursue themselves – and effective both in theory and in practice at the material time, i.e. that were accessible, capable of providing redress and had a reasonable prospect of success.

It is not necessary to exhaust discretionary or extraordinary remedies, for example by asking a court to review its decision or by asking for proceedings to be reopened or by exercising a simple hierarchical appeal.

The answer to the question whether an individual appeal to the constitutional court is required under Article 35 § 1 of the Convention depends largely on the particular features of the legal system of the State in question and the extent of the jurisdiction of its Constitutional Court.

Where an applicant has attempted to use a remedy which the Court considers inappropriate, the time taken to do so does not prevent the four-month time-limit from running, which may lead to the application being rejected for failure to comply with that time-limit.

Remedies must exist with a sufficient degree of certainty, both in practice and in theory.

In assessing whether a particular remedy satisfies the condition of accessibility and effectiveness, account must be taken of the particular circumstances of the case concerned.

National case-law must be sufficiently consolidated in the national legal order. Thus, the Court has held that recourse to a higher court loses its ‘effectiveness’ as a result of divergences in the case-law of that court, for as long as those divergences continue to exist.

Thus, for example, the Court has held that, where an applicant complains about the conditions of his detention after it has already ceased, an available and adequate remedy for compensation – that is, one which offers the applicant reasonable prospects of success – is a remedy that must be exhausted in accordance with Article 35 § 1 of the Convention.

However, if the applicant was still detained at the time he lodged his application, the remedy must be capable of preventing the continuation of the alleged violation in order to be deemed effective.

Where an applicant seeks to avoid being removed by a Contracting State to a third State because of an alleged risk of a violation of Article 2 or Article 3, a remedy is effective only if it has suspensive effect.

Conversely, if a remedy has suspensive effect, the applicant is normally obliged to exercise it.

In the context of Article 5 of the Convention, preventive and compensatory remedies are complementary. A remedy which does not lead to the release of the person concerned cannot be regarded as an effective remedy while the impugned deprivation of liberty continues.

However, where an applicant contends that he or she has been detained in breach of domestic law and the disputed detention has ended, an action for compensation capable of leading to recognition of the alleged violation and the award of compensation is in principle an effective remedy which must be exercised if its effectiveness in practice has been convincingly established.

It should be noted that de facto or de jure frontiers are not in themselves an obstacle to the exhaustion of domestic remedies; in principle, claimants who reside outside the jurisdiction of a Contracting State are not relieved of the obligation to exhaust domestic remedies in that State, despite the practical inconvenience or understandable personal reluctance to do so.

Nor does this rule apply where there is evidence of an ‘administrative practice’ consisting in the repetition of acts prohibited by the Convention and official tolerance by the State, so that any proceedings would be futile or ineffective.

However, it is only if the two constituent elements of the alleged ‘administrative practice’ (the ‘repetition of acts’ and the ‘official tolerance’) are sufficiently supported by prima facie evidence that the exhaustion rule laid down in Article 35 § 1 of the Convention does not apply.

If, in a particular case, to require the applicant to lodge a complaint would in practice be unreasonable and would constitute a disproportionate obstacle to the effective exercise of his right of individual petition, guaranteed by Article 34 of the Convention, the Court concludes that he is exempt from that requirement.

In situations giving rise to legitimate doubts as to a judge’s impartiality under Article 6 of the Convention, it is not necessarily necessary for the applicant to seek the judge’s disqualification; rather, the judge must defer if required by national law.

Procedural aspects of the rule of prior exhaustion of domestic remedies

The applicant’s obligation to exhaust domestic remedies is assessed in principle on the date on which the application is lodged with the Court, unless an exception is justified by the circumstances of a particular case.

Thus, in principle, a request for an interim measure based on Rule 39 of the Rules of Court may be submitted to the Court before an application form is filed.

Nevertheless, the Court tolerates the last stage of an application being reached shortly after the application has been lodged but before it has ruled on the admissibility of the application.

Where the Government intend to raise a plea of non-exhaustion, they must do so, in so far as the nature of the plea and the circumstances permit, in their written or oral observations on the admissibility of the application; only exceptional circumstances may dispense with this obligation.

At this stage, where the application has been communicated to the respondent Government and they have not raised a plea alleging non-exhaustion of domestic remedies, the Court cannot examine such a plea of its own motion.

It is not uncommon for the plea of non-exhaustion to be joined to the merits, particularly in cases concerning procedural obligations or guarantees.

The hypothesis of the creation of a new procedure for appeal and review

The exhaustion of domestic remedies is normally assessed on the basis of the state of the proceedings on the date when the application was lodged with the Court.

However, there are exceptions to this rule.

In particular, the Court has departed from this rule in cases concerning the length of proceedings following new appeals or concerning a new claim for compensation for interference with the right to property or for failure to comply with domestic judgments, or concerning prison overcrowding or inadequate conditions of detention.

The Court takes into account the effective and accessible nature of the new remedies that have been introduced.

With regard to the point at which it becomes fair to rely on a remedy newly incorporated into a State’s legal system as a result of new case-law, the Court has stated that fairness requires that account be taken of a reasonable period of time, necessary for litigants to have effective knowledge of the domestic decision establishing the remedy.

If the Court considers that the new remedy is effective, this means that the authors of similar applications must exhaust this new remedy, provided that they are not prevented from doing so by issues of time.

The assessment of the exceptional circumstances requiring the applicant to exhaust this remedy will take into account, in particular, the nature of the new national legislation and the context in which it was enacted.

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