remedies must be applied with some degree of flexibility and without excessive formalism (see Cardot, cited above, § 34). It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see Van Oosterwijck v. Belgium, 6 November 1980, § 35, Series A No. 40). This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see Akdivar and Others v. Turkey, 16 September 1996, §§ 65 - 68, Reports of Judgments and Decisions 1996-IV).
(b) Application of the general principles to the present case
(i) Alleged failure to appeal against the assistant prosecutor's decision of 13 October 2003
41. The Court reiterates that the applicant's allegations of ill-treatment were initially examined by the assistant prosecutor who, in a decision of 18 April 2003, decided not to institute criminal proceedings. Following the applicant's father's complaint to a higher-ranking prosecutor, that decision was quashed on 1 October 2003 and a new round of a prosecution inquiry was authorised. However, merely thirteen days later, on 13 October 2003, the assistant prosecutor closed the inquiry, refusing to institute criminal proceedings. Under Articles 125 and 148 of the Russian Code of Criminal Procedure that decision was amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction (see paragraph 30 above). The parties did not dispute the fact that the applicant had not appealed to a higher-ranking prosecutor. However, the applicant argued that he had made use of the judicial avenue for the purposes of exhausting remedies, by raising his ill-treatment complaint before the Rudnichniy District Court and then on appeal before the Kemerovo Regional Court.
42. As regards an appeal to a higher-ranking prosecutor, the Court has previously held that such an appeal does not constitute an effective remedy within the meaning of Article 35 of the Convention (see Belevitskiy v. Russia, No. 72967/01, § 60, 1 March 2007).
43. The position is, however, different with regard to the possibility of challenging before a court of general jurisdiction a prosecutor's decision not to investigate complaints of ill-treatment. The Court has previously found that in the Russian legal system the power of a court to reverse a decision not to institute criminal proceedings is a substantial safeguard against the arbitrary exercise of powers by the investigating authorities (see Trubnikov v. Russia (dec.), No. 49790/99, 14 October 2003, and Belevitskiy, cited above, § 61).
44. The Court observes that in the present case the applicant did not make use of the judicial appeal, in the formal sense, as laid down by Article 125 of the Russian Code of Civil Procedure, by instituting judicial proceedings against the assistant prosecutor's decision of 13 October 2003. Instead, he raised the ill-treatment issue before the Rudnichniy District Court, the trial court which determined the criminal charge against him, and then on appeal before the Kemerovo Regional Court.
45. In this respect, the Court reiterates its finding made in the Belevitskiy case (cited above, § 64) that an ill-treatment complaint raised before a trial court cannot, as a general rule, be regarded as a part of the normal process of exhaustion in respect of the complaints the applicant made to the Court. At the same time the Court accepted that in certain circumstances a more flexible approach in matters of exhaustion might be called for, taking into account that the rule of exhaustion of domestic
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