This guest post was written by Helena De Vylder. Helena is a Ph.D. Researcher at the Human Rights Centre of Ghent University. Her research concerns admissibility criteria in regional human rights systems.
On 25 March the Grand Chamber delivered its judgment in Vuckovic and others v. Serbia. The case was initiated by 30 reservists in the Yugoslavian army against the government’s refusal to pay per diems for their work during the NATO-intervention in Serbia in 1999. The case was dismissed for reasons of failure to exhaust domestic remedies. According to the majority, the applicants failed to invoke the substance of the complaint before the Constitutional Court. The dissenters criticize robustly the formalistic approach leading to this judgment.
Facts and domestic proceedings
The applicants comprise 30 reservists in the Yugoslav Army. They were in military service between March and June 1999 during the NATO-intervention in Serbia, but were subsequently demobilized. For this reason, the government refused to pay the per diems they were entitled to. After fierce public protests, in 2008 the governments reached an agreement with some of the reservists residing in particular underdeveloped municipalities. These, and only these reservists were guaranteed payment of the per diems. The 30 applicants could not benefit from the agreement, since they resided in other parts of the country
The applicants filed a civil claim against the respondent state based on the regulations that entitled them to the per diem, and pointed to the discrimination resulting from the 2008 agreement. The applicants, however, did not rely on any anti-discrimination provisions, and the court of first instance dismissed the claim based on the fact that the three years prescription period as of their demobilization had expired. However, the Court of First Instance did acknowledge the valid legal basis of the complaint. The applicants appealed this judgment based on procedural violations and the supposedly erroneous application of prescription periods. But like the initial complaint, the appeal did not refer to relevant any anti-discrimination law. The appellate Court therefore upheld the prescription decision. Before the Constitutional Court, the applicants finally submitted a complaint regarding the fairness of procedures and the erroneous and inconsistent application of domestic law. Other appellate courts had applied a ten year prescription time-limit with regards to the same facts. The Constitutional Court found a violation of the Constitution in so far as the appellate court in casu ruled differently from other appellate courts, placing the applicants in a materially different positions from other claimants. The right to fair trial was however not considered to be breached. As sole means of redress, the Constitutional Court ordered the publication of its decision in the official Gazette. It was stated that the applicants mentioned the 2008 agreement in their application to the Constitutional Court, but did not elaborate on it.
The applicants complained of discrimination stemming from the 2008 agreement, relying on Article 14 read in conjunction with Article 1 of Protocol No. 1, and Article 1 of Protocol No. 12. However, the Court never examined the merits of the case and dismissed – in contrast to the Chamber – the case for failing to exhaust domestic remedies.
It is contested between applicants and government whether the constitutional avenue was an effective domestic remedy. The government holds that this was an effective domestic remedy which needed to be exhausted properly, meaning in particular: the substance of the complaint, the alleged discrimination, should have been invoked. Moreover, in the government’s opinion, the applicants did not rely on the Prohibition of Discrimination Act in the preceding proceedings either. The applicants on the other hand, argue that they had raised the substance of the issue of discrimination in first instance and appeal. With respect to the proceedings before the Constitutional Court, they argue that they had provided the Constitutional Court with the opportunity to examine the discrimination issue, since the relevant issue was to be found in the case file; moreover, they held that the constitutional appeal was a merely theoretical remedy which did not need to be exhausted.
The Grand Chamber firstly provides a clear summary of its principles regarding the requirement to exhaust domestic remedies. Based on the subsidiarity principle, the Court specifies the requirement to make normal use of remedies which are available and sufficient in theory and practice: this requirement includes the need to make the complaint in substance and in compliance with domestic procedural rules. Moreover, the Court emphasizes the need to apply the rule with some flexibility and without excessive formalism. So far, so good for the applicants. But when it comes to the application of these seemingly clear rules in casu, their luck seems to run out.
The Court concludes that the civil and constitutional remedies were sufficient and available to afford redress in respect of the breaches alleged, but the applicants failed to exhaust these remedies. (§85) Before reaching this conclusion, the Court examines in turn the proceedings in first instance and appeal on the one hand, and the Constitutional remedy on the other. With respect to the procedures in first instance and appeal, the Grand Chamber holds that the applicants failed to formulate their complaint under either the constitutional- or Convention-based prohibition of discrimination or the domestic Prohibition of Discrimination Act. (§79) Read: the applicants failed to invoke the substance of the complaint at the domestic level. Moreover, the instituted proceedings were dismissed for being time-barred. (§80) This also means that the applicants did not exhaust domestic remedies properly in the Court’s opinion: established case law requires applicants to comply with national procedural rules.
Secondly, as regards the complaint lodged before the Constitutional Court, the Grand Chamber concludes that this is an effective remedy which offers reasonable prospect of success if properly raised. (§84) In casu however, the applicants failed to raise the discrimination complaint expressly or in substance. (§82) Again: the Grand Chamber punishes the applicants for failing to raise the substance of the complaint.
Lastly, the Grand Chamber examines whether particular circumstances exempt the applicants from exhausting domestic remedies. Three reasons are identified in order to eliminate this option. Firstly, it is argued that the applicants did not provide a convincing explanation as to why they did not institute their proceedings earlier. (§87) Secondly, the Grand Chamber argues that the applicants could have reopened their case before the domestic civil courts after the Constitutional Court judgment. (§88) Thirdly, the Chamber considered that the so-called varying appellate case law had been harmonized at the relevant time, and therefore dismissed the applicant’s complaint under Article 6 ECHR. This implies that the decision is final on this point, which delimits the case referred to the Grand Chamber. (§89)
The dissenting judges noted the contradictions in the majority’s analysis of the invocation of the discrimination rules before the national courts. On the one hand the majority states that the applicants did not lodge complaints regarding the discrimination, while they admit on the other hand that the applicants’ complaints were based on the Agreement and thus indirectly on the issue of discrimination. (§2) Moreover, they pointed out that the Grand Chamber applied the requirement to raise the substance of the complaint overly formalistically in contrast to its general point of view that the exhaustion rule must be applied with some flexibility and without excessive formalism. (§3-5)
At the heart of the case is the duty the invoke the substance of the complaint in order to have properly exhausted domestic remedies, and this will be the focus of this comment. The majority’s reasoning in this regard is problematic in two senses. Firstly, the Court failed to establish clearly to what extent the applicants failed to invoke the discrimination complaint. Considering the civil claim lodged before the court of first instance, the Grand Chamber claims that the applicants ‘pointed inter alia to the discrimination’ but ‘did not rely on any anti-discrimination provisions resulting from the Agreement’ (§17). Moreover, with regards to proceedings before the Constitutional Court, the dissenters rightfully note that the majority contradicts itself where it says the applicants mentioned the Agreement, but did not raise the discrimination complaint. (§82) Secondly, the majority applies this rule in a very formalistic manner, even though they professed to reject excessive formalism. It is the opinion of the majority that the fact that the applicants did not raise their discrimination complaint before the Constitutional Court, either expressly or in substance, constituted a failure to exhaust domestic remedies. (§82) Merely referring to discrimination did not suffice.
However, the dissenters raise the argument that this contradicts the case law of the Court. In my opinion, this is not entirely true, as an equally formalistic approach can be detected in other recent judgments examining whether the ‘substance of the complaint’ has been invoked. In the Grand Chamber-judgment Azinas v. Cyprus, the applicant exercised another remedy based on similar constitutional provisions. The Court did not consider this sufficient, even though the remedy could have overturned the measure in question on other grounds not connected with the complaint of violation of a Convention right. Moreover, in the decisions Gouda Sallam v. the Netherlands and Dalipi v. Greece it is held that even where domestic courts are under a duty to consider matters proprio motu – but failed to do so – applicants are not exempt from having to raise the issue which they intend to submit subsequently to the Court. As such the Vuckovic-judgment thus does not add much to the existing case law. It can be derived from case law that the applicant is responsible for submitting the particular complaint to the domestic courts in all instances, up to the constitutional level. Moreover, it appears that it does not suffice to provide the domestic court with the mere ‘possibility’ to examine the complaint, but that the applicant must oblige the domestic court to review this complaint. Applying this case law, the Court may, however, not fail to take into account that national procedural rules do not necessarily allow for this possibility.
Nevertheless, the Court’s strict reasoning in this regard, stands in stark contrast to the established case law concerning Article 35§1 as a whole, which holds that this article must be applied without excessive formalism and with some degree of flexibility. (See D.H. and others v. Czech Republic, S.H. and others v. Austria, M.D. and others v. Malta, and Ates Mimarlik Mühendislik A.S. v. Turkey)
As a result of this overly formalistic approach, the case was dismissed because the applicants used the wrong litigation strategy at the domestic level. However, no one can blame the applicants for focusing more on the legal rules which guarantee them the payment of the per diems, than on the discrimination resulting from the Agreement. I consider it a dangerous evolution that the European Court forces the applicants to make poor strategic choices on the domestic level in order to be able to present their case on the European level.
The Inter-American approach might serve as an interesting example for an alternative way to deal with the exhaustion rule. The Inter-American Court requires national judges on all levels to exercise ‘conventionality control’ ex officio in the sphere of their competences, implying that they should examine the compatibility of the domestic law in casu with the American Convention on Human Rights and the Court’s interpretation thereof. (See: Dismissed Congressional Employees v. Peru, Cabrera-Garcia and Montiel-Flores v. Mexico, Gelman v. Uruguay) This test moreover prompts the judges to raise complaints regarding inconventionality proprio motu. In contrast to the European system, the national judge’s role is more important. No cases which were dismissed for reason of failing to submit the substance of the complaints could be detected in the Inter-American jurisprudence. However, the Inter-American Court will most likely apply this criterion less stringent, taking into consideration that the national judges needed to invoke incompatibility with the Convention instead of the applicant. In the benefit of the applicants, the European Court might draw lessons from this approach.
 The reasoning developed by the Grand Chamber to establish the absence of special circumstances justifying the non-exhaustion of domestic remedies, is also questionable.