PART 2: How to Bring a Case to the Court
Applicants cannot raise claims before the Court that were not previously raised,
at least in substance, with the national authorities.415 The purpose of this rule,
which is a consequence of the Convention’s subsidiary character,416 is to “afford
the Contracting States the opportunity of preventing or putting right the violations
alleged against them before those allegations are submitted to the Convention institutions.”417 Furthermore, if an application is brought to the Court, it “should have
the benefit of the views of the national courts, as being in direct and continuous
contact with the forces of their countries.”418
In the context of Article 3 violations, the normal remedy consists of an effective official investigation into the allegations of ill-treatment followed by the prosecution
and punishment of the perpetrators.419 Therefore, in order to comply with the exhaustion requirement, applicants in Article 3 cases must have taken all reasonable
steps to ensure that their complaints reached the appropriate national authorities,
and must have shared relevant evidence with the authorities on a timely basis and
diligently pursued their cases at all stages of the national proceedings.
The only remedies that Article 35 requires to be exhausted are those that “relate to
the breaches alleged and at the same time are available and sufficient […] not only
in theory but also in practice.”420 Given that the exhaustion rule requires flexible
handling and is unsuitable for excessive formalism,421 the Court has explained
that it must “take realistic account not only of the existence of formal remedies in
the legal system of the member State concerned but also of the general legal and
political context in which they operate as well as the personal circumstances of the
applicants.”422 However, a mere doubt as to the effectiveness of domestic remedies,
even in circumstances where the national authorities systematically fail to act on
complaints of ill-treatment, does not absolve the applicant of the requirement of
exhausting remedies.423 In addition, civil or administrative remedies which are
only aimed at monetary compensation for the victim but which are not capable
of identifying the perpetrator or establishing individual criminal responsibility
415 See Cardot v. France, no. 11069/84, 19 March 1991, § 34.
416 Kudła v. Poland [GC], no. 30210/96, 25 October 2000, § 152; Handyside v. the United Kingdom, no. 5493/72,
7 December 1976, § 48.
417 Hentrich v. France, no. 13616/88, 22 September 1994, § 33; Remli v. France, no. 16839/90, 23 April 1996, § 33.
418 Burden v. the United Kingdom [GC], no. 13378/05, 29 April 2008, § 42.
419 See Assenov and Others v. Bulgaria, no. 24760/94, 28 September 1998, § 102.
420 Selmouni v. France [GC], no. 25803/94, 28 July 1999, § 75; Vernillo v. France, no. 11889/85, 20 February
1991, § 27; Johnston and Others v. Ireland, no. 9697/82, 18 December 1986, § 22.
421 Cardot v. France, no. 11069/84, 19 March 1991, § 34.
422 Akdivar and Others v. Turkey [GC], no. 21893/93, 16 September 1996, § 69.
423 See Epözdemir v. Turkey (dec.), no. 57039/00, 31 January 2002.
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