WIEDER AND GUARNIERI v. THE UNITED KINGDOM JUDGMENT
were subject to judicial review. Accordingly, at the time the applicants lodged
their applications with the Court the decision of the IPT was final.
(ii) The Court’s assessment
(α) General principles
63. It is a fundamental feature of the machinery of protection established
by the Convention that it is subsidiary to the national systems safeguarding
human rights (see Vučković and Others v. Serbia (preliminary
objection) [GC], nos. 17153/11 and 29 others, § 69, 25 March 2014).
64. States are dispensed from answering before an international body for
their acts before they have had an opportunity to put matters right through
their own legal system, and those who wish to invoke the supervisory
jurisdiction of the Court as concerns complaints against a State are thus
obliged to use first the remedies provided by the national legal system (see,
among many authorities, Vučković and Others, cited above, § 70 and Akdivar
and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and
Decisions 1996-IV).
65. The obligation to exhaust domestic remedies therefore requires an
applicant to make normal use of remedies which are available and sufficient
in respect of his or her Convention grievances. The existence of the remedies
in question must be sufficiently certain not only in theory but in practice,
failing which they will lack the requisite accessibility and effectiveness
(see Vučković and Others, cited above, § 71 and Akdivar and Others, cited
above, § 66). The exhaustion of domestic remedies is normally determined at
the date on which the application is lodged with the Court (Baumann
v. France, no. 33592/96, § 47, ECHR 2001-V (extracts)).
66. The Court has frequently underlined the need to apply the exhaustion
rule with some degree of flexibility and without excessive formalism (see
Vučković and Others, cited above, § 76 and Akdivar and Others, cited above,
§ 69). It would, for example, be unduly formalistic to require applicants to
exhaust a remedy which even the highest court of their country would not
oblige them to exhaust (see D.H. and Others v. the Czech Republic [GC],
no. 57325/00, §§ 117 and 118, ECHR 2007‑IV).
67. As regards the burden of proof, it is incumbent on the Government
claiming non-exhaustion to satisfy the Court that the remedy was an effective
one, available in theory and in practice at the relevant time (see Vučković and
Others, cited above, § 77 and Akdivar and Others, cited above, § 68).
(β) Application of the general principles to the case at hand
68. In the present case the Court is not being called upon to determine
whether the applicants were required to exhaust a new remedy which came
into being after they lodged their applications with the Court (compare, for
example, Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99
20
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