Strasbourg applications: some aspects of the “six months” rule
18 September 2012
Another brief guide to the admissibility conditions to the Strasbourg Court. This one is on the “six months rule” laid down in paragraph 1 of Article 35.
The Court may only deal with the matter … within a period of six months from the date on which the final decision was taken.
Easy enough to state; the difficulty lies in identifying the “final decision”, in other words the point at which the six months starts to run. Here are the broad guidelines to be identified from the case law (and for this I am indebted to Karen Reid’s excellent and detailed Practitioner’s Guide (Third Edition 2008 Sweet & Maxwell).
1. No waiver
It is worth mentioning at the outset that the six month rule is imposed irrespective of the wishes of the parties or court; the rule cannot be waived (X v France (1982):
The Contracting States cannot, on their own authority, put aside the rule of compliance with the six-months time limit. The deposit bv a State of a declaration made under Article 25[now 35] of the Convention does not affect the running of this delay
The Commission stated in Peters v Germany the following rationale for the rule and its hard-line application:
the six months’ rule, in reflecting the wish of the High Contracting parties to prevent the examination of past events after an indefinite lapse of time, serves the interest of legal certainty. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible.
And more recently in Latif v United Kingdom:
The Court further notes that, since the six-months’ rule serves the interests of legal certainty and marks out the temporal limits of the Court’s supervision, it is not open to the Court to set aside its application (Walker v. the United Kingdom (dec.), no. 34989/97, Reports of Judgments and Decisions 2000-I).
2. Time runs from date of effective remedy
It will be recalled from my post on exhaustion of local remedies that such domestic redress as there is must be effective and available. Provided that it is, time begins to run from the day after the final decision in the domestic process. In this sense the exhaustion rule works against the applicant since he or she cannot extend time by spinning out applications or appeals to bodies with no power or competence to address their case.
In Fernie v United Kingdom 2006 the applicant, acting in person, applied to the Court of Appeal for leave to appeal to the House of Lords. The CA refused leave or to certify a point of law of general public importance. Despite being notified of this refusal on 31 July 2003,, the applicant applied to the House of Lords. By letter dated 15 October 2003, the Judicial Clerk to the House of Lords acknowledged receipt of his undated letter and pointed out that as his appeal was a criminal matter and the Court of Appeal had not certified that it raised a point of law of general public importance the House of Lords could not entertain any appeal. The applicant tried to rely on this date as the “final decision date” for the purposes of time running. The Strasbourg Court did not agree, taking as the final effective decision that of the earlier Court of Appeal refusal.
Where there are no effective remedies for the applicant to try, time runs from the act or omission, or from the date of knowledge of that act or its effect on the applicant. In Finucane v United Kingdom 2002 the applicant widow’s complaints focussed essentially on the failure to provide a proper and adequate investigation into her husband’s death as regards the suspicions of collusion of members of the security forces with loyalist paramilitaries. Civil proceedings were ongoing, but her communication to the Court raised issues concerning the procedural requirement that the State carry out an effective investigation into deaths caused by its agents. The Court therefore did not consider that she had failed to exhaust domestic remedies in respect of her complaints about the procedural failings at the heart of this case. So then the government sought to rely on the lack of effective remedy to argue that time had begun at the moment the applicant was made aware of her husband’s death. The Court noted that information relating to the death and various investigations into the death had emerged piecemeal over a number of years, including two inquiries which resulted in a decision not to prosecute anyone involved. It was therefore “not unreasonable” for the applicant to have awaited the outcome of this inquiry into concrete information about security force complicity in the killing before introducing her application to Strasbourg. The six months was held to have run from the (much later) publication in Parliament of the decision not to prosecute those suspected to have been involved in her husband’s murder.
3. Ineffective remedy
A more complicated situation arises when the local remedy turns out to be ineffective after the applicant has tried it. Time begins to run the moment that he or she becomes aware, or should have become aware, that the remedy is not effective (and therefore does not need “exhausting” for the purposes of Article 35.) In Paul and Audrey Edwards (2001) the Court did not consider that the parents of a detainee who had died in prison had failed to exhaust domestic remedies in respect of their complaints about the procedural failings at the heart of this case. His family only became aware of the non-availability of remedies after publication of the inquiry report into their son’s death.
4. Circumstances suspending the six month period
Very rarely does the court allow instances of force majeure to suspend the running of the period. Illness and mental incapacity are not sufficient, for example. In Peters v Germany the Commission accepted the government’s arguments that the applicants’ challenge to an adoption order for their child was out of time. It noted that
the state of mental health of both applicants did not prevent them from addressing themselves to the Commission within the time-limit under Article 26 (Art. 27), even having regard to the fact that their submissions reveal some confusion.
In reaching this conclusion the Commission took into account that this mental deterioration had not prevented either of the applicants from initiating court proceedings against the adoption order and the court decision placing the second applicant under guardianship. Moreover the Commission noted that there had been “no indication that, as compared to the preceding years, the applicants’ state had changed at the time when they filed their application.”
Obviously ignorance of the law is never enough and this goes for awareness of the Convention or its case law:
The ignorance of applicants about the Convention does not constitute a circumstance justifying the interruption of the running of the six months’ period (Peters v Germany 1995)
Detention does not stop the six month limit from running unless it is proved that outside contact with others has been totally barred.
Exhaustion of local remedies is usually not required where the only recourse is to an ombudsman or some other non judicial officer for discretionary or ex gratia remedies (see my post on this point) and therefore any such application does not suspend the running of the six months.
5. Continuing violation of Convention
The only situation where the six month time limit does not apply is where there is a continuing state of affairs, such as Convention-infringing legislation which continuously affects the exercise of a guaranteed right or freedom. A famous example of this is the UK legislation banning consensual homosexual acts between adults which was brought to an end by the case of Dudgeon v United Kingdom in 1981. An ongoing situation like this is not the same as the continuing consequence of a breach of the Convention which itself has ended at a particular point in time – the continuing trauma of the families of the victims of “Bloody Sunday” did not constitute a continuing situation so as to suspend time limitation. McDaid and others v United Kingdom (1996) contains perhaps the clearest summary of what is required for the disapplication of the six month rule. The applicants should have been aware from the publication of the Widgery Report in 1972 that the commanding officers of the RUC had been exonerated in relation to the thirteen killings. The applicants’ complaints to the Commission however were not introduced until August 1994, more than twenty years after the inquest terminated.
Insofar as the applicants complain that they are victims of a continuing violation to which the six month is inapplicable, the Commission recalls that the concept of a “continuing situation” refers to a state of affairs which operates by continuous activities by or on the part of the State to render the applicants victims (see eg. Nos. 11192/84, dec. 14.5.87, D.R. 52 p. 227, 12015/86, D.R. 57 p. 108 and 24841/94 dec. 30.11.94). Since the applicants’ complaints have as their source specific events which occurred on identifiable dates, they cannot be construed as a “continuing situation” for the purposes of the six month rule. While the Commission does not doubt that the events of “Bloody Sunday” continue to have serious repercussions on the applicants’ lives, this however can be said of any individual who has undergone a traumatic incident in the past. The fact that an event has significant consequences over time does not itself constitute a “continuing situation”.
6. When time stops running
Time stops running on the date of introduction of the application before the Strasbourg Court, in other words a formal letter which sets out the substance of the complaint. In various admissibility decisions the Commission has said that the letter of introduction should raise the applicant’s complaint “in express terms or at least implicitly” or indicate “the nature of the complaint” and that it should give some “hint as to the Convention issues which could be raised”
In the case of Latif v United Kingdom 2004 the applicants complained under Article 6 of the Convention that they did not receive a fair trial as a result of the failure of the trial judge to specifically direct the jury that they could not draw adverse inferences from their silence during police interviews. The trouble was that they made no mention of this in their original letter, which said only this –
We are representing the above who, once the appropriate application is prepared, wish to make an application to the European Court of Human Rights in relation to their conviction in the U.K. and the subsequent loss of their appeal followed by their refusal to allow this case to be referred to the House of Lords.
No suggestion was given of the nature of these applicants’ complaints or of the Convention provisions or issues in question. Furthermore, no judgments of the domestic courts or other documents were supplied from which even an indication could have been gleaned as to the object of the application. The Commission rejected their subsequent, more detailed letter as out of time since this first one had not stopped the six months running. It was not considered sufficient to make a bare reference to a trial in the initial letter to substantiate the complaint under the Convention.
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All well and true, as is the convention in every state there must be a starting and finishing point for proceedings. However, the above analysis identifies exceptions to the near absolute rule, which is inherent in the fact that Article 6 (3) (b) stipulates quite clearly that in criminal proceedings everyone has a ‘minimum’ right ” to have ‘adequate time’ and the facilities for the preparation of his defence. Thus, a closer examination needs to be taken as to the precise meaning of ‘adequate time’ for different jurisdictions have different ways of dealing with cases and the amount of time it takes to process a case to the highest authority.
Note, that the above article is specifically relates to criminal proceedings, which no doubt has to have exceptions to the rule for the clear reason that a person’s liberty is at issue. However, Article 6 (1) commences by stating that ” In the determination of his ‘civil rights’…., everyone is entitled to a fair and public hearing within a ‘reasonable time’ “. Again, this makes clear that similiar exceptions must apply to the rule, as a persons civil right is at issue, and that person has a right to defend or bring proceedings within a reasonable time taking into account the resources, facilities, and delays in the state system.
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