Grand Chamber – Article 35-1 – Exhaustion of domestic remedies
Effective domestic remedy
Six month period
Failure to raise allegation of discrimination either expressly or in substance in proceedings before Constitutional Court: preliminary objection upheld
Facts – The applicants were former Yugoslav army reservists who claimed entitlement to per diem allowances in respect of military service they had performed between March and June 1999. The Serbian Government initially rejected the claims but, after protracted negotiations, in 2008 agreed to pay allowances to those reservists who resided in ‘underdeveloped’ municipalities. The applicants did not qualify for payment under the terms of this agreement as they were not resident in the municipalities concerned and so, in March 2009, brought civil claims for payment under the Rules on Travel and Other Expenses in the Yugoslav Army. They also alleged that the terms of the 2008 agreement were discriminatory. However, their claims were rejected at first instance and on appeal as being out of time. The applicants then lodged an appeal with the Constitutional Court challenging the application of the statutory limitation period in their cases. Although the Constitutional Court ruled in their favour as regards their complaints of judicial inconsistency in the application of the limitation period, it ruled that publication of its decision in the Official Gazette constituted sufficient redress. In the meantime in a number of similar cases that were decided between 2002 and early March 2009, first-instance and appellate courts across Serbia upheld certain reservists’ claims which had not been declared time-barred.
In their application to the European Court, the applicants complained of discrimination concerning the payment of the per diems following the 2008 agreement. In a judgment of 28 August 2012 a Chamber of the Court held by six votes to one that there had been a violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1. Before the Grand Chamber the respondent Government argued that the applicants had not exhausted domestic remedies as they had failed to raise the issue of alleged discrimination before the Constitutional Court.
Law – Article 35 – 1: In so far as there exists at the national level a remedy enabling the domestic courts to address, at least in substance, the argument of a violation of a given Convention right, it is that remedy which should be exhausted. It is not sufficient that the applicant may have unsuccessfully exercised another remedy which could have overturned the impugned measure on other grounds not connected with the complaint of a violation of a Convention right. It is the Convention complaint which must have been aired at national level for there to have been exhaustion of ‘effective remedies’.
The Court was satisfied that at the relevant time an appeal to the civil courts had constituted an effective domestic remedy for the purposes of Article 35-1 of the Convention. However, although the applicants had made use of that remedy, they had failed to comply with the applicable national prescription rules, which was one of the conditions that should normally be fulfilled in order to meet the requirement of exhaustion of national remedies. Although they had had gone on to challenge the civil courts’ application of the rules on statutory limitation in the Constitutional Court, they had not raised their discrimination complaint before that court, either expressly or in substance.
The Grand Chamber took note of three decisions the Constitutional Court had taken in comparable cases. In none of these cases had the Constitutional Court declined jurisdiction to examine the complaints made under Article 21 of the Constitution in relation to the allegedly discriminatory effects of the 2008 agreement. In two of them it had omitted to deal with the issue but had upheld the constitutional appeals in question on other grounds and in the remaining case, it had not determined the complaint because the appellants had failed to invoke Article 21 in conjunction with another constitutional provision.
In the Grand Chamber’s view, there was therefore nothing to show that the constitutional remedy would not have offered a reasonable prospect of success in respect of the applicants’ discrimination complaint had they sought to properly raise it before the Constitutional Court. Where legal systems provided constitutional protection of fundamental human rights and freedoms, it was in principle up to the aggrieved individual to test the extent of that protection and allow the national courts to develop those rights by way of interpretation. The existence of mere doubts as to the prospects of success of a particular remedy was not a valid reason for failing to exhaust that avenue of redress.
Consequently, although the civil and constitutional remedies had been sufficient and available to provide redress in respect of the applicants’ discrimination complaint, they had failed to exhaust these remedies.
Conclusion: preliminary objection upheld (fourteen votes to three).
Updated: 02 December 2021; Ref: scu.523676