The exhaustion of domestic remedies
Under Article 35 this requirement is based on the generally recognized rules of international law and part of customary international law.
The rationale for the exhaustion rule is to afford the national authorities, primarily the courts, the opportunity to prevent or put right the alleged violations of the Convention. It is based on the assumption that the domestic legal order will provide an effective remedy for violations of Convention rights.
The exhaustion rule may be described as one that is golden rather than iron: the Commission and the Court have frequently underlined the need to apply the rule with some degree of flexibility and without excessive formalism, given the context of protecting human rights
The rule of exhaustion is neither absolute nor capable of being applied automatically.
Applicants must nonetheless observe the applicable rules and procedures of domestic law, failing which their application is likely to fall foul of the exhaustion rule.
They must also use any procedural means that may prevent a breach of the Convention. If more than one potentially effective remedy is available, the applicant is only required to have used one of them.
It is not necessary for the Convention right to be explicitly raised in domestic proceedings. As long as the issue was raised implicitly, or in substance, the exhaustion rule is satisfied.
Applicants are only required to exhaust domestic remedies that are available and effective. This issue may go to the very substance of the complaint and is not infrequently joined to the merits, in particular in cases regarding procedural obligations or guarantees.
Discretionary or extraordinary remedies need not be exhausted. Similarly, a hierarchical complaint does not constitute an effective remedy.
Where an applicant has tried a remedy that Court considers inappropriate, the time taken to do so will not interrupt the running of the six-month time limit, which may lead to the application being rejected as out of time.
In determining whether any particular remedy meets the criteria of availability and effectiveness, regard must be had to the particular circumstances of the individual case. Account must be taken not only of formal remedies available, but also of the general legal and political context in which they operate as well as the personal circumstances of the applicant.
Lack of financial means does not absolve the applicant from making at least some attempt to take legal proceedings.
Where the Government claims non-exhaustion, it bears the burden of proving that the applicant has not used a remedy that was both effective and available at the relevant time. The availability of any such remedy must be sufficiently certain in law as well as in practice. The remedy’s basis in domestic law must therefore be clear.
Once the Government has discharged its burden of proving that there was an appropriate and effective remedy available to the applicant, it is for the latter to show that:
- the remedy was in fact exhausted;
- or was for some reason inadequate and ineffective in the particular circumstances of the case;
- or that there existed special circumstances absolving him or her from the requirement.
Mere doubts on the part of the applicant will not absolve him or her from trying a particular remedy.
But where a suggested remedy did not in fact offer reasonable prospects of success, for example in light of settled domestic case law, the fact that the applicant did not use it is no bar to admissibility.