Concept and Meaning of the Exhaustion of Legal Remedies
Die Exhaustion of Legal Remedies is a central legal term in German procedural law as well as in public law. It denotes the circumstance that all legally prescribed instances and possible domestic legal remedies in a given procedure have been fully exhausted. The exhaustion of legal remedies plays a decisive role, particularly in the doctrine of legal protection, in the context of access to constitutional complaints, and in international legal protection. The following will comprehensively explain the legal foundations, practical significance, and different facets of the term.
Legal Foundations and Systematic Classification
National Legal System
The exhaustion of legal remedies is of major significance in various areas of German law. It does not arise from a single legal provision but results from the entirety of procedural regulations governing the recourse to different instances. The most important areas of application are found in criminal, civil, administrative, and social procedural law.
Zivilprozessrecht
In civil proceedings, the relevant provisions concerning legal remedies (appeal, revision, complaint) are found in the Code of Civil Procedure (ZPO). The regular course of appeal is considered exhausted when the final permissible ordinary legal remedy has either been lodged and decided upon, or when it is no longer possible to lodge it (e.g., due to missing the deadline or non-admission of the remedy).
Administrative Procedure Law
In administrative proceedings, the exhaustion of legal remedies is particularly relevant in connection with the admissibility of a constitutional complaint (Section 90 para. 2 sentence 1 BVerfGG). The legal remedies are considered exhausted when all specialized court instances have been gone through regarding a governmental decision or a judgment.
Criminal Procedure Law and Social Procedure Law
In criminal law, the exhaustion of legal remedies becomes significant in connection with individual legal protection after all ordinary procedural remedies have been used, for example before lodging a constitutional complaint. The Social Court Act (SGG) also requires the complete use of appeal and revision for the route of remedies to be considered exhausted.
International Legal Protection
In the international context (e.g., individual complaints before the European Court of Human Rights – ECtHR), exhaustion of domestic legal remedies is a precondition for the admissibility of a complaint. See, for example, Art. 35 para. 1 ECHR.
Function and Purpose of the Exhaustion of Legal Remedies
The obligation to exhaust legal remedies aims to give national courts the opportunity to rectify the alleged violation themselves before supranational or constitutional bodies are called upon. This serves the protection of subsidiarity, prevents an overload on the highest and international courts, as well as circumvention of national jurisprudence.
Areas of Application and Exceptions
Constitutional Complaint to the Federal Constitutional Court
According to Section 90 para. 2 sentence 1 BVerfGG, a constitutional complaint is only admissible if all other avenues of legal redress have been exhausted. The Federal Constitutional Court requires the complete utilization of all available and reasonable procedural opportunities (including joint action, appeal, revision, and complaint).
Exceptions to the Requirement of Exhaustion
In exceptional cases, the Federal Constitutional Court may deem the exhaustion of legal remedies unnecessary. This is the case, for example, if another remedy is obviously not possible or unreasonable for the complainant (for instance, if existing case law makes filing an application hopeless, or if irreparable disadvantages would result from missing a deadline).
International Individual Complaints
In international human rights protection as well, for example before the ECtHR or the UN Human Rights Committee, the exhaustion of domestic remedies is among the first admissibility requirements for an individual complaint.
Scope of Legal Remedies to Be Exhausted
Usually, it is required to pursue all available and effective remedies, but not necessarily all that can theoretically be imagined. Ineffective, unreasonable, or exceptionally ineffective remedies need not be pursued. Here, too, there are exceptions where exhaustion is not required, particularly when remedies are not practically accessible or are ineffective.
Effect and Legal Consequences of Exhaustion or Non-Exhaustion
Effects on the Admissibility of Legal Remedies
A procedure in which legal remedies have not been exhausted is generally considered inadmissibleby the respective instances (e.g., Federal Constitutional Court, international courts). These bodies examine the admissibility requirements ex officio, resulting in a procedural obstacle that can only be remedied by subsequently exhausting the missing legal remedies.
Effect of Res Judicata
Exhaustion of legal remedies leads to a judgment becoming formally and materially binding, provided that no further (extraordinary) remedies exist or have been lodged. Legal finality in this sense means procedural closure and binding effect for the parties and potentially for third parties.
Special Features and Practical Issues
Unclear Legal Remedies and Factual Obstacles
In practice, problems may arise, especially when it is unclear whether a legal remedy is permissible or whether a decision constitutes a final-instance judgment. Distinctions can arise particularly with non-admission complaints, cost decisions, or documentless proceedings, making it difficult to assess whether remedies have been exhausted.
Suspension and Reinstatement
If a party misses a legal remedy for reasons beyond their control, in exceptional cases, a reinstatement to the previous status may be considered under the applicable procedural rules. In that case, the exhaustion of remedies is subsequently remedied.
Summary
Die Exhaustion of Legal Remedies is a core rule-of-law principle and a central admissibility requirement for numerous national and international legal protection procedures. On the one hand, it safeguards the subsidiarity of legal avenues and grants domestic instances priority in providing relief. On the other hand, it represents an important step towards legal finality and legal peace. Detailed knowledge and consideration of this principle are indispensable in all areas of complex law, especially in the context of constitutional complaint proceedings and international legal protection.
Frequently Asked Questions
When are legal remedies considered exhausted?
Legal remedies are deemed exhausted when all available judicial instances have been pursued and all legal possibilities for challenge have been exploited. This means that all domestic legal remedies provided for in the relevant procedural rules must first have been fully utilized. These include appeals, revisions, or complaints; relevant deadlines must be adhered to and correct form must be observed. Remedies are especially deemed exhausted when a final-instance judgment or decision has been delivered or if the further admission of a legal remedy, for example due to lack of standing or legal restrictions, is no longer possible. Exhaustion of remedies is often a prerequisite for other forms of legal protection, such as bringing a case before the Federal Constitutional Court or the European Court of Human Rights.
What is the significance of the exhaustion of legal remedies in constitutional law?
In constitutional law, the exhaustion of legal remedies is a mandatory prerequisite for lodging a constitutional complaint (Section 90 para. 2 BVerfGG). The complainant must have exhausted all available and reasonable specialized legal remedies before the Federal Constitutional Court can be called upon. This is to ensure that the specialized courts had the opportunity to examine the alleged violation of fundamental rights and, if necessary, to remedy it. A constitutional complaint is inadmissible if a remedy is still available or if further appeal was voluntarily not pursued. Only in exceptional circumstances, such as unreasonable delay, may this requirement be dispensed with.
What happens if legal remedies are not exhausted?
If the available legal remedies are not fully exhausted according to the applicable procedural rules, the proceedings before higher instances are generally to be dismissed as inadmissible. This primarily concerns complaints to the Federal Constitutional Court or to international instances such as the European Court of Human Rights. Approaching these courts prematurely is only permissible in exceptional cases, namely if it is unreasonable for the complainant to pursue additional remedies for factual or legal reasons. As a rule, however, the complaint will be dismissed as inadmissible if it is not demonstrated and proven that no domestic remedies remain available.
What exceptions are there to the principle of exhaustion of legal remedies?
Exceptionally, exhaustion of legal remedies may be dispensed with if pursuing an additional remedy is obviously hopeless or would lead to an unreasonable delay. Such situations occur, for example, if an admitted instance in the particular case does not have competence to decide on the subject matter or the procedure is procedurally hopeless (e.g., lack of standing, inadmissibility of the legal remedy). If clarification by the court would result in irreparable disadvantage due to the length of the proceedings, a waiver of the requirement may also be justified. The burden of proof and argumentation here lies with the complainant.
How is exhaustion of legal remedies regulated in administrative proceedings?
In administrative proceedings, the exhaustion of remedies typically means that after completion of the administrative process, the entire ordinary chain of instances before the administrative courts must first be followed. After the objection decision, the next step is to file an action for annulment with the administrative court, followed, if necessary, by an appeal to the Higher Administrative Court and then revision to the Federal Administrative Court. Only once all options have been exhausted or no further remedies are possible—for example, due to non-admission of a further complaint—is the legal route considered exhausted, and the affected party may, for example, approach the Federal Constitutional Court.
What special role does the exhaustion of legal remedies play in international law?
In international law as well, especially before the European Court of Human Rights (ECtHR), the exhaustion of domestic remedies is an essential admissibility criterion (Art. 35 para. 1 ECHR). An individual complaint can only be lodged once all available and reasonable national remedies have been exhausted. This includes both pursuing all possible administrative and judicial procedures and invoking human rights violations during the national procedure. Failure to exhaust all remedies generally leads to the inadmissibility of the complaint at the international level.
What must be considered when documenting the exhaustion of legal remedies?
Anyone invoking exhaustion of legal remedies must provide detailed evidence of this. This includes complete documentation of all remedies previously pursued, including the principal reasons for the decisions of the instance courts, as well as proof of compliance with deadlines and proper submission of applications. In proceedings before constitutional and international courts, copies of the relevant judgments, decisions, or orders must be attached to the application. Incomplete or incorrect documentation can lead to inadmissibility of the further complaint.
