SELMOUNI v. FRANCE JUDGMENT 24 76. Article 35 provides for a distribution of 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, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof 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 the requirement (see the Akdivar and Others judgment cited above, p. 1211, § 68). One such reason may be constituted by the national authorities’ remaining totally passive in the face of serious allegations of misconduct or infliction of harm by State agents, for example where they have failed to undertake investigations or offer assistance. In such circumstances it can be said that the burden of proof shifts once again, so that it becomes incumbent on the respondent Government to show what they have done in response to the scale and seriousness of the matters complained of (ibid.). 77. The Court would emphasise that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism (see the Cardot judgment cited above, p. 18, § 34). It has further recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case (see the Van Oosterwijck judgment cited above, pp. 17-18, § 35). This means, amongst other things, that the Court 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 the Akdivar and Others judgment cited above, p. 1211, § 69). 78. The Court points out that as soon as the applicant was released from police custody on 29 November 1991, the investigating judge dealing with the proceedings against him ordered an expert medical report (see paragraph 16 above) and that a preliminary investigation was carried out under the authority of the public prosecutor (see, in particular, paragraph 25 above). However, the Court notes that in the course of that preliminary investigation no statement was taken from the applicant until more than a year after the events in issue (see paragraph 24 above) and that the opening of a judicial investigation was not requested until after the applicant had lodged, on 1 February 1993, a criminal complaint together with an application to join the proceedings as a civil party (see paragraphs 28-29 above).