Legal summary

January 2023

Orhan v. Türkiye (dec.) - 38358/22

Decision 6.12.2022 [Section II]

Article 35

Article 35-1

Four-month period (former six-month)

Final domestic decision arrived at before, but notified after, entry into force on 1 February 2022 of new time‑limit under Protocol No. 15: six‑month rule applicable

Facts – In April 2018 the applicant was sentenced by the Assize Court to seven and a half years’ imprisonment on conviction for a serious offence. In March 2021 he unsuccessfully applied for transfer to an open prison and release on licence. He complained to the Court under Articles 5, 6, 13 and 14 of the Convention.

The final domestic decision was reached by the Constitutional Court on 19 January 2022 and notified to the applicant on 25 February 2022.

What had previously been the six‑month time‑limit for application to the Court under Article 35 § 1 of the Convention was reduced to four months by Article 4 of Protocol No. 15.

Article 35 § 1 as amended provides:

“1. The Court 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.”

Protocol No. 15 came into force on 1 August 2021, but by virtue of its Article 8 § 3 the new time‑limit did not do so until 1 February 2022, after a transitional period of six months from the date of entry into force of the Protocol.

Law – Article 35 § 1:

The Constitutional Court decision exhausting the applicant’s remedies had been arrived at before, but notified after, 1 February 2022, the date of entry into force of the new time‑limit under Protocol No. 15. The Court thus considered it necessary to clarify how it was to be determined whether the old six‑month time‑limit or the new four‑month time‑limit applied.

The closing words of Article 8 § 3 of Protocol No. 15 specified that the new time‑limit “shall not apply to applications in respect of which the final decision within the meaning of Article 35, paragraph 1 of the Convention was taken prior to the date of entry into force of Article 4 of this Protocol”.

Article 31 § 1 of the Vienna Convention on the Law of Treaties stated that a treaty “shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. The ordinary meaning of the words “was taken” in Article 8 § 3 seemed to entail that the applicable time‑limit was that which had been in force at the date on which the national courts had arrived at the decision exhausting the applicant’s domestic remedies.

For the purposes of computing application time‑limits, the Court had consistently held that time ran not from the date on which the decision exhausting the applicant’s domestic remedies was reached but from the date on which it was notified (where domestic law made provision for its notification) or finalised ( Papachelas v. Greece [GC]), notwithstanding that the English version of Article 35 § 1 stated that time was to run from the date on which the decision “was taken” – something the French version of the Article did not specify.

The question therefore arose whether the applicable time‑limit should be that in force at the date of notification rather than at the date on which the final domestic decision had been reached.

However, the question of the applicable time‑limit (four or six months) was clearly separate from the question as to when time started to run. And whereas Article 35 § 1 laid down general rules of procedure and jurisdiction, Article 8 § 3 of Protocol No. 15 was concerned with provision for a transitional period.

Furthermore, the approach to the question of when time started to run had been determined by a series of specific considerations which had weighed in favour of using the date of service or the date from which it had been possible for the applicant to find out the content of the final decision (finalisation date). This had been so because the time‑limit had been designed not only to ensure legal certainty but also to afford prospective applicants the time to decide whether to lodge an application and, if so, what specific complaints and arguments to raise. The object and purpose of Article 26 had thus been best served by regarding the six‑month period as running from the date of service of the written judgment ( Worm v. Austria ).

Likewise, a limitation period could not begin to run until the aggrieved party was actually in a position to bring a claim. Otherwise it would be possible for the authorities, by delaying notification or the opportunity to have notice of a final decision, to shorten considerably the time in which an application could be made to the Court or even deprive a prospective applicant of the opportunity of making a valid application, thereby rendering the right of application under the Convention theoretical and illusory, whereas the rights guaranteed by the Convention were meant to be practical and effective. This approach was also consistent with the Court’s previous judgments concerning access to a court for the purposes of Article 6 of the Convention ( Miragall Escolano and Others v. Spain ).

Conversely, where Article 8 § 3 of Protocol No. 15 was concerned, there were no such considerations that might enable the Court to depart from the ordinary meaning of the words and decide to apply not the six‑month time‑limit that had been in force when the final decision “was taken” but the four‑month time‑limit in force when the decision had been notified.

At any rate, to apply the time‑limit in force at the time the final domestic decision had been notified rather than taken would have adverse consequences for the applicant, whereas the aim of the rule in Worm had been the opposite and, on the ordinary meaning of the words used in Article 8 § 3, the applicant had been entitled to believe – if need be after taking appropriate advice – that he had six months’ time from notification of the decision of the Constitutional Court.

What was more, since the issue of the applicable time‑limit under Article 8 § 3 was clearly separate from the issue as to when time started to run for the purposes of Article 35§ 1, it was in no way inconsistent to apply the time‑limit that had been in force at the date of the final domestic decision as expressly provided by Protocol No. 15, be it the old or the new limit, and to start time running from the date of notification or finalisation of the decision, having regard to the object and purpose of the Convention in accordance with the Court’s well‑established case‑law.

Lastly, the closing sentence of paragraph 22 of the Explanatory Report on Protocol No. 15 made clear that the purpose of Article 8 § 3 was to prevent retroactive effect from being given to Article 4 of Protocol No. 15, and to ensure that the new four‑month time‑limit would not apply to applications in respect of final domestic decisions which had been reached when that time‑limit was not yet in force. Therefore, the approach of applying the time‑limit in force when the final domestic decision had been reached was consistent with the purpose of Article 8 § 3.

It followed from all of the foregoing that it was the six‑month time‑limit that applied to applications in respect of which the final domestic decision, within the meaning of Article 35 § 1, had been arrived at before 1 February 2022, regardless of when it had been notified to the applicant, that is, even where notification had taken place after 31 January 2022. The four‑month time‑limit was to be applicable to applications in respect of final domestic decisions which had been taken after 31 January 2022.

Here, the final domestic decision had been reached by the Constitutional Court on 19 January 2022. Accordingly, the six‑month time‑limit applied. Time had run from 26 February 2022, the day after notification of the decision, to 25 August 2022, respectively the dies a quo and the dies ad quem .

As the application had been lodged on 18 July 2022, it had been in time under Article 35 § 1.

Conclusion: six‑month rule satisfied (unanimously).

The Court declared the application inadmissible for being manifestly ill‑founded and incompatible ratione materiae with the provisions of the Convention.

(See also Worm v. Austria , 22714/93, 29 August 1997, Legal summary ; Papachelas v. Greece [GC], 31423/96, 25 March 1999, Legal summary ; Miragall Escolano and Others v. Spain , 38366/97 et al., 25 January 2000, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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