Annals of the Law Faculty No. 32, Vol. 16, Zenica, 2023.

AUTHOR(S)
Maša Alijević, Senada Zatagić, Amna Hrustić
Abstract

Article 35, paragraph 1 of the European Convention on Human Rights and 
Fundamental Freedoms (ECHR) of 1950 provides that an individual application 
to the European Court of Human Rights (the Court) may be submitted by 
individuals, non-governmental organizations, or groups of individuals against 
Convention member states. In order for such an application to be accepted, 
certain conditions must be fulfilled, including the condition of exhaustion 
of domestic remedies in the country being sued. Depending on the country 
in question, this will often mean that there must be a final judgment of the 
Supreme or Constitutional Court on the issue to which the application relates.
In its practice, the Court has established certain rules in deciding on this 
condition, and it is considered that this issue should be approached with a 
certain flexibility and that it is not an automatic or absolute rule. For example, 
the Court has determined that this condition may be fulfilled even after the 
application is submitted to the Court, but before a decision is made on the 
admissibility of the case for decision before the Court, or that there may be 
certain special circumstances when this condition does not have to be fulfilled.
This paper will analyze the Court’s case law regarding the issue of 
exhaustion of domestic remedies, and how this issue is regulated in Bosnia and 
Herzegovina, i.e., what procedure is provided for by domestic legislation to 
satisfy this condition. Given the specific constitutional arrangement of Bosnia 
and Herzegovina and the organization of courts, this paper will analyze the 
procedure for fulfilling the condition of exhaustion of domestic remedies, and 
it will be analyzed in relation to the Baralija v. Bosnia and Herzegovina case, 
which represents an exception to the rule, since the Constitutional Court of 
Bosnia and Herzegovina did not decide on this case before the application to 
the Court was made, and the Court accepted and decided on it.

Keywords

admissibility, exhaustion of domestic remedies, flexibility,  exceptions