SECOND SECTION
CASE OF NEGOVANOVIĆ AND OTHERS v. SERBIA
(Applications nos. 29907/16 and 3 others – see appended list)
 
 
 
JUDGMENT
Art 1 P12 • Prohibition of discrimination • Discriminatory denial to blind chess players of financial awards granted to sighted players as national sporting recognition for winning similar international accolades • Margin of appreciation considerably reduced when establishing different legal treatment for people with disabilities • “Prestige” of a game or a sport not to be dependent merely on whether practised by persons with or without a disability
 
STRASBOURG
25 January 2022
 
FINAL
 
20/06/2022
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Negovanović and Others v. Serbia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Jon Fridrik Kjølbro, President,
 Carlo Ranzoni,
 Aleš Pejchal,
 Valeriu Griţco,
 Egidijus Kūris,
 Branko Lubarda,
 Pauliine Koskelo, judges,
and Stanley Naismith, Section Registrar,
Having regard to:
the four applications (nos. 29907/16, 30022/16, 30322/16 and 31142/16) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Serbian nationals, Mr Branko Negovanović (“the first applicant”), Mr Sretko Avram (“the second applicant”), Mr Živa Markov (“the third applicant”) and Mr Dragoljub Baretić (“the fourth applicant”), on the dates indicated in the appended table;
the decision to give notice of the applications to the Serbian Government (“the Government”);
the parties’ observations;
Having deliberated in private on 30 November 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applications concern alleged discrimination by the respondent State against blind chess players, its own nationals, who had won medals at major international events, compared with all other Serbian athletes and chess players, with or without disabilities, who had won similar accolades, in relation to the enjoyment of certain financial benefits and awards for their achievements as well as formal recognition thereof. THE FACTS
2. A list of the applicants is set out in the appended table, as are the applicants’ personal details, the date of introduction of their applications before the Court and the information regarding their legal counsel, respectively. 3. The Government were represented by their Agent, Ms Zorana Jadrijević Mladar. 4. The relevant facts of the case, as submitted by the parties, may be summarised as follows. The applicants’ medals and the national sporting achievements recognition and rewards system
5. Between 1961 and 1992 the applicants won a number of medals for Yugoslavia, as part of the national team, at the Blind Chess Olympiads. The highest achievement of the fourth applicant, Mr Dragoljub Baretić, in this competition was a gold medal, while the highest achievements of the first, second and thirds applicants, Mr Branko Negovanović, Mr Sretko Avram and Mr Živa Markov, respectively, were silver medals. 6. In 2006 the respondent State enacted the Sporting Achievements Recognition and Rewards Decree which provided, under specified circumstances, for a national recognition and rewards system consisting of an honorary diploma, a lifetime monthly cash benefit and a one-time cash payment (see paragraphs 24-34 below). The requests adDressed to the administrative authorities
7. On an unspecified date in 2007 the Serbian Chess Federation (Šahovski savez Srbije) recommended that a number of chess players who had won medals in international competitions, including the applicants, be formally proposed to the Government (Vlada Republike Srbije) by the Ministry of Education and Sport (Ministarstvo prosvete i sporta) as persons entitled to the national sporting recognition awards for their achievements (see paragraph 33 below). 8. Since, unlike the sighted chess players with similar accolades, the applicants had not been formally proposed as persons entitled to such recognition and awards, on 27 February 2007 the Serbian Blind Persons Federation (Savez slepih Srbije) sent a letter to the said ministry, urging it to treat blind chess players on an equal footing compared with all other athletes and chess players, with or without disabilities, who had attained the same or similar sporting results. 9. On 30 July 2009 the Serbian Chess Federation and the applicants lodged additional requests to the same effect with the Ministry of Youth and Sport (Ministarstvo omladine i sporta), noting that the applicants had been discriminated against, having still not received their national sporting recognition awards. The ministry in question was also notified that, should no redress be forthcoming, an administrative dispute would be brought before the relevant courts (see paragraphs 37-42 below). 10. On 10 October 2009 the Ministry of Youth and Sport informed the applicants that they did not fulfil the legal requirements, as set out in the Sporting Achievements Recognition and Rewards Decree, to be granted the national sporting recognition awards and that this was why no recommendation had been made to the Government in this regard. The civil proceedings
11. On 23 October 2009 the applicants lodged a civil discrimination claim against the Republic of Serbia. The applicants alleged, inter alia, that they had been discriminated against and dishonoured compared with other athletes or players with similar sporting achievements. In particular, all sighted chess players had been granted the national recognition awards in question while the applicants’ own requests in this respect had been ignored. They therefore sought a judicial declaration that they had been discriminated against and redress for the pecuniary and non-pecuniary harm suffered in this connection (see paragraphs 35 and 36 below). 12. On 1 April 2010 the Novi Sad Court of First Instance (Osnovni sud u Novom Sadu) ruled in favour of the applicants and in so doing: (a) established that they had indeed been discriminated against compared with sighted chess players and Paralympic medal winners; (b) awarded each applicant 300,000 Serbian dinars (RSD), amounting to approximately 2,995 euros (EUR) at that time, on account of the mental anguish suffered in this regard and the harm caused to their honour and reputation, plus statutory interest; (c) recognised that the applicants, respectively, were entitled to an honorary diploma in recognition of their achievements and a lifetime monthly cash benefit as of 23 October 2009, consisting of accrued and future benefits, the former with statutory interest and the latter until the relevant regulations provided for such a possibility; (d) ordered that the first, second and third applicants each be paid EUR 45,000 in RSD on account of the one-time cash payment for their achievements, with applicable interest as of 23 October 2009; (e) ordered that the fourth applicant be paid EUR 60,000 in RSD on account of the said one-time cash payment, also with applicable interest as of 23 October 2009; and (f) awarded the applicants RSD 309,000 in litigation costs, amounting to approximately EUR 3,085 at that time. 13. Following an appeal lodged by the defendant, on 5 July 2011 the Novi Sad Appeals Court (Apelacioni sud u Novom Sadu) quashed the impugned judgment and ordered a retrial as regards the ruling described under points (a) and (b) in paragraph 12 above. Concerning the ruling described under points (c), (d) and (e), however, the appellate court rejected the applicants’ claims as inadmissible, being of the view that they involved issues of an administrative nature which could not be adjudicated by a civil court (see paragraph 40 below). 14. On 14 November 2011 the Novi Sad Court of First Instance ruled partly in favour of the applicants. Specifically, it (a) established, once again, that they had been discriminated against compared with sighted chess players and Paralympic medal winners; (b) awarded each applicant RSD 500,000, amounting to approximately EUR 4,870 at that time, on account of the mental anguish suffered in that connection and the harm caused to their honour and reputation, plus statutory interest; and (c) ordered that the applicants be paid RSD 405,000 in litigation costs, amounting to approximately EUR 3,945 at that time. 15. Following a further appeal lodged by the defendant, on 14 June 2012 the Novi Sad Appeals Court reversed the impugned judgment and ruled fully against the applicants. The appellate court noted, inter alia, that the Blind Chess Olympiad had not been among the competitions listed in the Sporting Achievements Recognition and Rewards Decree. There had hence been no discrimination when the Ministry of Youth and Sports had merely informed the applicants of this fact. Moreover, the State had had the prerogative to select the competitions which it deemed most important on the basis of the popularity of the sport in question, its significance internationally and the country’s “realistic financial resources”. The Novi Sad Appeals Court lastly stated that, in any event, the applicants could have made use of the administrative disputes procedure but had failed to do so (see paragraph 9 above). 16. On 5 September 2012 the Chief Public Prosecutor’s Office (Republičko javno tužilaštvo) refused to lodge, on the applicants’ behalf, a request for the protection of legality (zahtev za zaštitu zakonitosti) with the Supreme Court of Cassation (Vrhovni kasacioni sud). 17. On 6 March 2013 the Supreme Court of Cassation dismissed the applicants’ appeal on points of law (revizija). Just like the Novi Sad Appeals Court before it, that court noted that the Blind Chess Olympiad had not been among the competitions listed in the relevant regulations and that the applicants had thus not been entitled to the national sporting recognition awards in question. Moreover, there had been no evidence that any other blind chess players had ever received those very awards, meaning that there had also been no differential treatment among the blind chess players themselves. The constitutional court
18. On 8 May 2013 the applicants lodged an appeal with the Constitutional Court (Ustavni sud). 19. On 17 December 2015 the Constitutional Court noted that, according to the impugned decisions rendered by the civil courts, the applicants had not suffered discrimination since their medals had been won in the course of competitions which had not been listed in the Sporting Achievements Recognition and Rewards Decree. Moreover, the Constitutional Court stated that it had itself already rejected, on 9 July 2013, a motion challenging the constitutionality and legality of the said decree. Other relevant facts
20. On 29 October 2014 the International Chess Federation (Fédération Internationale des Échecs), also referred to as the World Chess Federation or FIDE by its French acronym, sent a letter to the Serbian Chess Federation. The letter reads as follows:
“The International Braille Chess Association (IBCA) is an integral part of the World Chess Federation ... The results achieved by the members of the IBCA on worldwide and European championships are also official results of the FIDE. Blind chess players have the same chess titles, which are obtained in the same manner as the ones obtained by healthy chess players. Furthermore, blind chess players are listed on the registration and rating lists of the FIDE together with healthy chess players, and based on the results achieved at the IBCA competitions, which are a part of the competing system of FIDE. Every blind chess player as well as every healthy one has his or her own registration and identification number, based on which [he or she] can be located on the registration and rating list of the FIDE. The World Chess Olympiad, held as part of the competing system of the FIDE, includes chess [O]lympics for the healthy as well as for the blind (the Blind Chess Olympiad). It is the same with other European and worldwide tournaments organised by the FIDE – they include tournaments for both the healthy and the blind chess players. This opinion is issued at the request of the Serbian Chess Federation for the purpose of exercising the right of the blind chess players to obtain national sports acknowledgments issued by the Republic of Serbia in the same way healthy chess players do. As mentioned before, FIDE treats both groups of chess players as equals – they are entitled to the same titles and ratings and have the same rights.”
21. In an undated letter, addressed to the Ministry of Youth and Sport, the IBCA stated, inter alia, that the applicants had won medals in the Blind Chess Olympiads. The IBCA further noted that their association was “a rightful member of FIDE” and that blind chess players were, based on their results, “on the single official list of FIDE together with chess players without sight impairment”. Lastly, “in accordance with the basic postulates of ethics and fair-play in sports”, the IBCA requested the ministry not to discriminate against blind chess players when it came to formally recognising their achievements. 22. In their submissions lodged with the domestic authorities, the applicants maintained, inter alia, that of all the medal winners and champions over the years, amounting to some 400 people, including sighted chess players, only blind chess players had been denied their national sporting recognition awards. 23. As of today and despite repeated efforts to do so, chess is still not included in the Olympic Games or the Paralympic Games organised by the International Olympic Committee and the International Paralympic Committee respectively. RELEVANT LEGAL FRAMEWORK
The Sporting Achievements Recognition and Rewards Decree (Uredba o nacionalnim priznanjima i nagradama za poseban doprinos razvoju i afirmacji sporta, published in the Official Gazette of the Republic of Serbia – OG RS – nos. 65/06 and 06/07)
24. Article 2 § 1 of the Sporting Achievements Recognition and Rewards Decree provided that athletes and players who were nationals of the Republic of Serbia and who had won a medal – as members of the national team of Yugoslavia or of the State Union of Serbia and Montenegro or the national team of the Republic of Serbia – at the Olympic Games, the Paralympic Games, the Chess Olympiad or at a world or a European championship in an Olympic sport, or who had been world record holders in such a discipline, as well as their coaches if they too were nationals of the Republic of Serbia, were all entitled to a “national sporting recognition award” (nacionalono sportsko priznanje). 25. Article 2 § 2, inter alia, defined the national sporting recognition award as consisting of an honorary diploma and a lifetime monthly cash benefit. 26. Article 2 § 2 (1) provided, inter alia, that, for a gold medal won at the Olympic Games, the Paralympic Games or the Chess Olympiad, the monthly cash benefit was to be the equivalent of three times the average net salary in the Republic of Serbia for the month of December in the preceding year. 27. Article 2 § 2 (2) provided, inter alia, that, for a silver medal won at the Olympic Games, the Paralympic Games or the Chess Olympiad, the monthly cash benefit was to be in the amount of two and a half average net salaries in the Republic of Serbia for the month of December in the preceding year. 28. Article 2 §§ 3 and 4 provided that the national sporting recognition award could be bestowed only once upon the same athlete or coach and that it was to be formally presented on the National Day of the Republic of Serbia. 29. Article 3 of the Sporting Achievements Recognition and Rewards Decree provided, inter alia, that athletes and players who were nationals of the Republic of Serbia and who had won a medal – as members of the national team of the Republic of Serbia – at the Olympic Games, the Paralympic Games, the Chess Olympiad or at a world or a European championship in an Olympic sport or chess were also entitled to a one-time cash payment in accordance with the decree. 30. Article 4 § 1 specified that for a medal won in a team sport at the Olympic Games, the Paralympic Games or the Chess Olympiad, the team in question would be paid EUR 400,000 in RSD for a gold medal, EUR 350,000 in RSD for a silver medal, and EUR 300,000 in RSD for a bronze medal. 31. Article 4 § 2 provided, inter alia, that for a medal won at the Olympic Games or the Paralympic Games in individual sports, athletes were personally entitled to a one-time cash payment in the amount of 15% of the sums referred to in Article 4 § 1 (see paragraph 30 above). 32. Article 4 §§ 4 and 5 provided that for a medal won at the Olympic Games or the Paralympic Games by a team, the one-time cash payment was to be adjusted taking into account the size of the team itself. It also set out the exact calculation method to be used. 33. Article 7 provided, inter alia, that the national sporting recognition awards referred to in Article 2 § 2 of the decree, as well as the one-time cash payment, were to be granted by the Government on the proposal of the ministry in charge of sports and that an athlete or player would be entitled to receive the lifetime monthly cash benefit upon reaching the age of 35. 34. In 2009 the decree was repealed and replaced by another one regulating the same subject matter. Other decrees on the issue and their amendments were enacted in 2013, 2015, 2016, 2017 and 2019. The decree of 2009, inter alia, specified that athletes and players who had won a medal prior to 15 April 2009 would be entitled to the recognition and rewards as provided in the earlier regulations, that is in the decree summarised in paragraphs 24-33 above. The Prohibition of Discrimination Act (Zakon o zabrani diskriminacije, published in OG RS no. 22/09)
35. Article 43 of the Prohibition of Discrimination Act sets out the various forms of judicial redress available to victims of discrimination, including based on disability. They include injunctive and declaratory relief, such as the recognition of the discrimination suffered and its prohibition in the future, as well as compensation for any pecuniary and non-pecuniary damage. The publication in the media of a civil court’s judgment rendered in that context may also be ordered. 36. The Act entered into force on 7 April 2009 and has since then been amended once, in 2021. The General Administrative Proceedings Act (Zakon o opštem upravnom postupku; published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 33/97 and 31/01)
37. Article 208 § 1 of the General Administrative Proceedings Act provided, inter alia, that in simple matters an administrative body was obliged to issue a decision within one month of when the claimant had lodged his or her request. In all other cases, the administrative body was to render a decision within two months thereof. 38. Article 208 § 2 of the Act enabled the claimant whose request had not been decided within the periods established in the previous paragraph to lodge an appeal as if his or her request had been denied. Where an appeal was not allowed, the claimant had the right to directly initiate an administrative dispute before an appropriate court of law. 39. The Act was subsequently amended, in 2010, and was ultimately repealed and replaced by other legislation enacted in 2016. The Administrative Disputes Act (Zakon o upravnim sporovima; published in OG FRY no. 46/96)
40. Article 6 of the Administrative Disputes Act provided that an administrative dispute could only be brought against an “administrative act”, which was an act/decision adopted by a State body in the determination of a person’s rights and obligations concerning “an administrative matter”. Article 9 § 1, however, provided, inter alia, that an administrative dispute could not be instituted in respect of matters where “judicial redress” was “secured outside [of the context] of an administrative dispute”. 41. Articles 8 and 24 provided, inter alia, that a claimant who had lodged a request with an administrative body would have the right to bring an administrative dispute before a court of law in the following situations. (a)  Where an appellate body failed to issue a decision upon his or her appeal within sixty days, or indeed a shorter deadline if so provided by law, the claimant could repeat the request and if the appellate body declined to rule within an additional period of seven days the claimant could institute an administrative dispute. (b)  In accordance with, mutatis mutandis, the conditions set out under (a) above, where a first-instance administrative body failed to issue a decision and there was no right to an appeal, the claimant could directly institute an administrative dispute. (c)  Where a first-instance administrative body failed to issue a decision upon the claimant’s request within sixty days, or indeed a shorter deadline if so provided by law, as regards matters where an appeal was not excluded, the claimant had the right to lodge the said request with the appellate administrative body. Where that body rendered a decision, the claimant had the right to institute an administrative dispute against it, and where it failed to rule the claimant could institute an administrative dispute in accordance with, mutatis mutandis, the conditions set out under (a) above. 42. This Act was repealed and replaced by other legislation on 30 December 2009. THE LAW
        joinder of the applications
43. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
alleged VIOLATIONs of Article 1 of protocol no. 12Scope of the case

44. The applicants are blind chess players and Serbian nationals who had won medals for Yugoslavia internationally, notably in the Blind Chess Olympiad. They complained that they had been discriminated against by the Serbian authorities by being denied certain financial awards, that is a lifetime monthly cash benefit as well as a one-time cash payment (see paragraphs 24‑33 above), unlike all other athletes and chess players, including sighted chess players or other athletes or players with disabilities, who had won similar international accolades. 45. The applicants further complained that as part of the discrimination alleged above, including the failure of the Serbian authorities to formally recognise their achievements through an honorary diploma (see paragraph 25 above), they had suffered adverse consequences to their reputations. 46. Notice of these complaints was given to the Government under Article 14 of the Convention, read in conjunction with Article 8 thereof and Article 1 of Protocol No. 1, as well as under Article 1 of Protocol No. 12. 47. Having regard to the substance of the applicants’ complaints and the relevant context, however, the Court, which is the master of the characterisation to be given in law to the facts of any case before it (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), is of the opinion that all of the complaints in the present case should be examined from the standpoint of Article 1 of Protocol No. 12 alone (see, mutatis mutandis, Napotnik v. Romania, no. 33139/13, § 52, 20 October 2020). That provision reads as follows:
“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”
The applicants’ complaints that they had been discriminated against by being denied certain financial awards (see paragraph 44 above)Admissibility

(a)   The Court’s jurisdiction ratione materiae
48. The Government argued that since the Blind Chess Olympiad had not been among the competitions listed in the Sporting Achievements Recognition and Rewards Decree, the applicants had consequently not been entitled to acquire any pecuniary benefits in this connection. 49. The applicants maintained that they should have been granted the same awards as all other athletes and players, including sighted chess players, with similar international accolades. 50. At the outset, the Court reiterates that as the question of applicability is an issue of its jurisdiction ratione materiae, the general rule of dealing with applications should be respected and the relevant analysis should be carried out at the admissibility stage unless there is a particular reason to join this question to the merits (see Denisov v. Ukraine [GC], no. 76639/11, § 93, 25 September 2018). No such particular reason exists in the present case, and the issue of the applicability of Article 1 of Protocol No. 12 therefore falls to be examined at the admissibility stage. 51. The Court reiterates that whereas Article 14 of the Convention prohibits discrimination in the enjoyment of “the rights and freedoms set forth in [the] Convention”, Article 1 of Protocol No. 12 introduces a general prohibition of discrimination (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 53, ECHR 2009, and Baralija v. Bosnia and Herzegovina, no. 30100/18, § 45, 29 October 2019). 52. It is important to note that Article 1 of Protocol No. 12 extends the scope of protection to not only “any right set forth by law”, as the text of paragraph 1 might suggest, but beyond that. This follows in particular from paragraph 2, which further provides that no one may be discriminated against by a public authority (see Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 104, 9 December 2010, and Napotnik, cited above, § 55). According to the Explanatory Report to Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4.XI.2000), ETS 177, the scope of protection of that provision concerns four categories of cases where a person is discriminated against:
“i.  in the enjoyment of any right specifically granted to an individual under national law;
ii.  in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner;
iii.  by a public authority in the exercise of discretionary power (for example, granting certain subsidies);
iv.  by any other act or omission by a public authority (for example, the behaviour of law enforcement officers when controlling a riot).”
The Explanatory Report further clarifies as follows:
“... it was considered unnecessary to specify which of these four elements are covered by the first paragraph of Article 1 and which by the second. The two paragraphs are complementary and their combined effect is that all four elements are covered by Article 1. It should also be borne in mind that the distinctions between the respective categories i-iv are not clear-cut and that domestic legal systems may have different approaches as to which case comes under which category.”
53. Therefore, in order to determine whether Article 1 of Protocol No. 12 is applicable, the Court must establish whether the applicants’ complaints fall within one of the four categories mentioned in the Explanatory Report (see Savez crkava “Riječ života” and Others, § 105, and Napotnik, § 56, both cited above). 54. In this connection, the Court notes that the domestic law (see paragraphs 24-32 above), as interpreted by the national courts (see paragraphs 15, 17 and 19 above), provided that only chess players who had won medals at the Chess Olympiad, organised for sighted chess players only, were entitled to certain financial awards, thus effectively disqualifying all other chess players including those who, such as the applicants, had won their medals at the Blind Chess Olympiad. It follows that the Serbian authorities, when deciding to enact such legislation, clearly exercised their discretionary power in such a way as to treat differently the sighted and the blind chess players despite their winning similar international accolades. Consequently, the Court cannot but conclude that the applicants’ complaints fall under category (iii) of potential discrimination as envisaged by the Explanatory Report (see paragraph 52 above). 55. In view of the foregoing, Article 1 of Protocol No. 12 is applicable to the facts of the applicants’ complaints and the Government’s implicit objection in this regard must be rejected. (b)   Exhaustion of domestic remedies
(i)      The parties’ submissions
56. The Government maintained that the applicants had failed to make use of an existing and effective domestic remedy. In particular, and as noted by the domestic civil courts themselves, the applicants should have properly brought an administrative dispute with respect to their complaints relating to the national sporting recognition awards (see paragraphs 13, 15 and 37-42 above). Moreover, the Government pointed out that the applicants had clearly been aware of this avenue of redress but had, for some reason, decided not to pursue it (see paragraph 9 above). 57. The applicants submitted that they had complied with the exhaustion requirement, particularly since their complaints had concerned discrimination and they had brought an anti-discrimination civil lawsuit in this regard (see paragraph 35 above). (ii)    The Court’s assessment
(α)     Relevant principles
58. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring a case against a State before the Court to first use the remedies provided by the national legal system. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right domestically (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70, 25 March 2014). 59. 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 (ibid., § 71). 60. To be effective, a remedy must likewise be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004, and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006‑II). However, 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, for example, Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009, and Vučković and Others, cited above, § 74). 61. An applicant’s failure to make use of an available domestic remedy or to make proper use of it (that is to say by bringing a complaint at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law) will result in an application being declared inadmissible before this Court (see Vučković and Others, cited above, § 72). 62. The Court has, however, also frequently pointed out the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism (ibid., § 76, with further references). For example, where more than one potentially effective remedy is available, the applicant is only required to use one remedy of his or her own choosing (see, among many other authorities, Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009; Nada v. Switzerland [GC], no. 10593/08, § 142, ECHR 2012; Göthlin v. Sweden, no. 8307/11, § 45, 16 October 2014; and O’Keeffe v. Ireland [GC], no. 35810/09, §§ 109-11, 28 January 2014). Also, it would, for example, be unduly formalistic to require the applicants to exercise a remedy which even the highest court of their country would not oblige them to use (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 117‑18, ECHR 2007‑IV). 63. With respect to legal systems which provide constitutional protection for fundamental human rights and freedoms, such as that in Serbia, it is incumbent on the aggrieved individual to test the extent of that protection (see Vinčić and Others v. Serbia, nos. 44698/06 and 30 others, § 51, 1 December 2009). 64. As regards the burden of proof, it is up to 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, with further references). (β)      Application of these principles to the present case
65. Turning to the present case, the Court notes that, as stated by the applicants themselves, the very substance of their complaints concerned allegations of discrimination (see paragraphs 44 and 57 above). In those circumstances it cannot be deemed unreasonable for them to have sought redress on the basis of the national anti-discrimination legislation, which specifically provided for various forms of injunctive and/or declaratory relief to victims of such treatment, as well as compensation for any pecuniary and non-pecuniary damage suffered (see paragraph 35 above; see also, mutatis mutandis, Vučković and Others, cited above, § 78). 66. Furthermore, an administrative dispute would not have offered, in the very specific circumstances of the present case, a more reasonable prospect of success, compared with the civil lawsuit (see paragraphs 60 and 62 above). The Government, for their part, provided no relevant domestic case-law showing that any other claimants had ever obtained redress through this legal avenue in respect of discrimination-related claims brought in connection with the sporting recognition awards system (see paragraph 64 above). 67. The applicants lastly, albeit unsuccessfully, tested the extent of the protection for fundamental human rights and freedoms afforded by the Constitutional Court, it being noted that as of 7 August 2008 a constitutional appeal has, in principle, been considered by the Court as an effective domestic remedy within the meaning of Article 35 § 1 of the Convention (see Vučković and Others, cited above, § 61). The Constitutional Court was thus given an opportunity to expand this protection by way of interpretation (see paragraph 63 above; see also Vučković and Others, cited above, § 84, with further references) but held that there had been no discrimination in the present case. In so doing, however, it did not reject the applicants’ complaints on the grounds that they had not properly exhausted any other, prior, effective legal avenues, including the administrative dispute proceedings, as it could have done (see paragraph 19 above). It would therefore also be unduly formalistic for the Court now to hold otherwise (see paragraph 62 above in fine; see also, mutatis mutandis, Dragan Petrović v. Serbia, no. 75229/10, §§ 55 and 57, 14 April 2020). 68. In view of the foregoing, the Government’s objection as to the non-exhaustion of domestic remedies, within the meaning of Article 35 § 1 of the Convention, must be rejected. (c)   As regards other grounds of inadmissibility
69. The Court notes that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

Outcome for Article P12-1: violation