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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
function as an international court, to adjudicate on cases which require the
finding of basic facts, which should, as a matter of principle and effective
practice, be the domain of domestic jurisdiction (see Demopoulos
and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02,
13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 69, ECHR 2010).
Similarly, in cases requiring the balancing of conflicting interests under
Articles 8 and 10 of the Convention it is particularly important that the
domestic courts are first given the opportunity to strike the “complex and
delicate” balance between the competing interests at stake. Those courts are
in principle better placed than this Court to make such an assessment and, as
a consequence, their conclusions will be central to its own consideration of
the issue (MGN Limited v. the United Kingdom, no. 39401/04, §§ 140-155,
18 January 2011; Palomo Sánchez and Others v. Spain [GC],
nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, 12 September
2011; Axel Springer AG v. Germany [GC], no. 39954/08, §§ 85-88,
7 February 2012; Courtney v. Ireland (dec), no. 69558/10, 18 December
2012; and Charron and Merle-Montet v. France (dec), no. 22612/15, § 30,
16 January 2018).
246. 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).
247. There is, however, no obligation to have recourse to remedies
which are inadequate or ineffective. To be effective, a remedy must be
capable of remedying directly the impugned state of affairs and must offer
reasonable prospects of success (see Vučković and Others, cited above,
§§ 73-74 and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006‑II).
The existence of mere doubts as to the prospects of success of a particular
remedy which is not obviously futile is not a valid reason for failing to
exhaust that avenue of redress (see Vučković and Others, cited above, § 74
and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009).
248. 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. Once
this burden has been satisfied, it falls to the applicant to establish that the
remedy advanced by the Government was in fact exhausted, or was for
some reason inadequate and ineffective in the particular circumstances of
the case, or that there existed special circumstances absolving him or her
from this requirement (see Vučković and Others, cited above, § 77;
McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010;