PART 2: How to Bring a Case to the Court
will no longer be heard.429 The Court itself can, however, declare a case inadmissible
at any stage of the proceedings.
The Court has already developed a body of case law in respect of most Contracting
Parties that discusses the domestic remedies that are generally available in those
countries; those that are found ineffective to remedy particular violations are
routinely disposed of in subsequent cases by mere reference to precedent.430 It is
important for applicants to refer to this case law when arguing exhaustion in their
application forms. This pertains in particular to jurisprudence that indicates that
the question of exhaustion of certain identified remedies is “closely related to the
merits of the applicant’s complaint,” thus rendering the application admissible.431
In other words, where the Court has taken similar matters into consideration in
earlier cases, follow-up applications should and must make use of that case law
facilitating access to the Court. While taking this case law into account, the Court
will nevertheless have regard to the particular circumstances of each case in its
findings on whether remedies have been exhausted.
b) Only Available and Effective Remedies Need
to be Exhausted
As mentioned above, only available and effective remedies have to be exhausted.
For a remedy to be available, an applicant must be able to initiate it without having
to rely on public authorities. The Court, for instance, found that the possibility of
lodging a complaint with the Ombudsman, who in turn could challenge the law
before the Constitutional Court, was not a remedy available to the applicant because it was not open to the applicant to directly launch a complaint to the court.432
In addition, for a remedy to be ‘available’, it must exist at the time the application
is lodged. If a new and relevant remedy is introduced in the Contracting Party
after the application has been lodged, applicants will not normally be required to
exhaust that new remedy. An important exception to that general rule is the pilot
judgment procedure433 aimed at repetitive cases indicating that “there is a systemic or structural dysfunction in the country concerned which has given or could
429 Nikolova v. Bulgaria [GC], no. 31195/96, 25 March 1999, § 44, and Alexov v. Bulgaria, no. 54578/00, 22
May 2008, § 152.
430 Dovletukayev and Others v. Russia, nos. 7821/07, 10937/10, 14046/10 and 32782/10, 24 October 2013, §
183, with reference to Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, 24 February 2005,
§§ 119–121, regarding civil action to obtain redress for damage sustained as a result of the alleged
illegal acts or unlawful conduct of State agents in Russia in the context of Article 2-violations.
431 Grimailovs v. Latvia, no. 6087/03, 25 June 2013, § 89; Timofejevi v. Latvia, no. 45393/04, 11 December
2012, § 84.
432 See e.g. Tănase v. Moldova [GC], no. 7/08, 27 April 2010, § 122.
433 Broniowski v. Poland [GC], no. 31443/96, 22 June 2004. See also Rule 61 of the Rules of Court.
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