Protocol No. 15 Amending the Convention on the Protection of Human Rights and Fundamental Freedoms (“Protocol”), which entered into force on 01 August 2021, has reduced the six-month period for applications to the European Court of Human Rights (“ECtHR”), stipulated in the first paragraph of Article 35 of the European Convention on Human Rights (“ECHR”), to four months.
Background to the Amendment
Turkey signed the Protocol on 13 September 2013. For it to enter into force, however, all 47 member states of the Council of Europe were required to sign the Protocol, this did not happen until it was signed by the final two states, Bosnia-Herzegovina and Italy, triggering its ratification.
How Will the Protocol Be Implemented?
According to the provision in paragraph 1 of Article 35 of the ECHR, which was amended by Protocol No. 15, “The Court (ECtHR) may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of four months from the date on which the final decision was taken.” The new four-month application period will start on 01 February 2022.
In accordance with the third paragraph of Article 8 of the Protocol, if a "final decision" in domestic law, referred to in paragraph 1 of Article 35 of the ECHR, was given before 01 February 2022, the effective date of the contract article, applications made based on that decision will be subject to a six-month period, rather than a four-month period.
What are the Admissibility Criteria for Applications to the ECtHR?
In an individual application to the ECtHR, procedural admissibility criteria are primarily examined. Only after an application is found to be admissible can its merits be examined. The first condition for this is that domestic remedies have been exhausted before an application is made to the ECtHR. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law. Such domestic remedies must be of the usual, accessible, effective and appropriate characteristics in a technical sense. Once domestic remedies have been exhausted, the period for filing an individual application begins from the date of the final decision in Turkish law, without prejudice to special cases such as continuous violations.
In addition to the procedural criteria, admissibility criteria regarding the jurisdiction of the Court are also primarily examined. In this context, the criteria of authority in terms of person (ratione personae), place (ratione loci), time (ratione temporis) and subject (ratione materiae) must be fulfilled in accordance with the case law of the Court. In the event of a dispute as to whether the Court has jurisdiction, the Court shall decide.
What Is Turkey's Current Record With the ECtHR?
According to the latest data published by the Ministry of Justice, the number of pending cases before the Court has decreased since 2012. One of the main factors affecting this is that countries have started to remedy violations in various ways in their domestic systems and consider the ECtHR in a secondary position. However, it can also be seen that pending cases in the Court have been on an increasing trend in recent years. One of the Protocol’s focuses is to keep the number of pending cases at a rate that the Court can handle and to emphasize its secondary nature in a way that highlights the sovereign rights of states.
In terms of pending applications by country as of the end of 2020, the Russian Federation is first with 13,650 applications and Turkey is second with 11,750 applications. Ukraine (10,400) is third and Romania (7,550) is in fourth place. In 2020, the Russian Federation had the highest number of violation decisions, with 173 decisions given against them. The number of violation verdicts against Turkey was 85.
Considering the distribution of violation decisions; while there were 11 violation decisions in 2018 and six in 2019 regarding Article 2 (Right to Life) of the Convention, this number decreased to two in 2020 both of which are related to the procedural dimension of the right to life. Six decisions were made in 2020 regarding the violation of Article 3 (Prohibition of Torture) of the Convention, a reduction from 16 in 2018 and 2019. In addition, while nine violation decisions were made in 2018 and four in 2019 relating to lengthy trial periods under Article 6 of the Convention, only one decision was made in 2020. There has also been a decrease in decisions made regarding the violation of Article 8 (Right to Respect for Private and Family Life) of the Convention in 2020. While this number was eight in 2018 and 11 in 2019, the number of violation decisions rendered within the scope of this article was three in 2020. While the number of decisions regarding violation of Article 13 (Right to an Effective Application) of the Convention was seven in 2018 and two in 2019, there were no violation decisions regarding this right in 2020.
Of the applications made against Turkey in 2020, 167 cases were dismissed due to "Friendly Settlements" and 56 cases due to "Unilateral Declaration". Considering that 120 applications were concluded with the friendly settlement method in 2019, it is clear that the number of applications that were concluded by amicable settlement has increased by 40 percent.
In order to understand the reasons for the time reduction implemented by Protocol, it is essential to consider the Protocol's amendment to the ECHR's Preamble. Protocol No. 15 added the phrase "Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention" to the end of the Preamble to the ECHR. The shortening of the individual application period’s duration can be considered in this regard to both keep the number of pending ECtHR cases under control and to give greater priority to the sovereignty and margin of appreciation of the State Parties to the ECHR.
This situation clearly reflects the judicial policy that the ECtHR has followed in recent years and will continue with its newly elected President, Róbert Ragnar Spanó. In this atmosphere, it is vital to pay maximum attention to the periods described above in order to prevent possible loss of rights.
Kemal Altuğ Özgün