CONCURRING OPINION OF JUDGE SAJÓ

I agree with my colleagues that the case is admissible. I also agree with the findings of violations on all counts. I would just like to add some reasons that justify the interpretation of the “six-month rule” that was applied in the present case.

Article 35 § 1 of the Convention provides that the Court may only deal with a matter within a period of six months from the date on which the final decision was taken. There is no specific rule applicable to situations where no final decision is taken, for example in cases of disappearance. In such circumstances the rule applicable to such situations has to be developed and interpreted in conformity with the purpose of the Convention, namely securing the effective recognition and observance of the rights protected by the Convention. Nevertheless, it is sometimes argued that the six-month rule must be interpreted strictly to satisfy the exigencies of legal certainty. However, in the context of the Convention such legal certainty attributed to the six-month rule would serve a very specific expectation, namely that, whatever had happened (even the most outrageous mass violation of human rights), the authorities and the State would not be held accountable. The logic applied in Šilih v. Slovenia ([GC], no. 71463/01, 9 April 2009) indicates that this is unacceptable to the Court. The State Party interest in the six-month rule is very different from the reliance interest generally protected in a domestic system with regard to the finality of a judgment. Lord Bingham has voiced the opinion that when it comes to procedure a non-formalistic approach is appropriate: “Procedural idiosyncrasy is not (like national costume or regional cuisine) to be nurtured for its own sake, and in answering the question before us we must have regard to the realities of litigation in this country and the purpose of the Convention, not to tradition, nomenclature or rules developed for other purposes” ( Dresser U.K. Ltd v. Falcongate Freight Management Ltd ( The Duke of Yare ) [1992] 5 CL 373, [1992] QB 502).

The present judgment relied on the interpretation of the six-month rule that was adopted in a case concerning an international conflict: Varnava and Others v. Turkey ([GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 166, ECHR 2009). Given the domestic difficulties in the present case, that extension is eminently reasonable. What I find difficult to follow is the logic that where more than ten years has elapsed the applicants would generally have to show convincingly that there was some ongoing, and concrete, advance being achieved to justify further delay in coming to Strasbourg. I understand that a clear rule like this offers guidance as to expectations and may push potential applicants to take action more swiftly, but on the other hand it may not serve the purposes of the Convention. There is nothing magical about the ten-year mark that would change an ongoing situation. As long as there is a reasonable expectation that domestic remedies will be provided and the potential applicants behave reasonably in pursuing available remedies, the general principles of Varnava should apply. This is the interpretation that best satisfies the dictates of subsidiarity. Subsidiarity is based on the undertaking, entered into by the member States of the Council of Europe, to pursue the “further realisation of human rights and fundamental freedoms”. Most importantly, this is the interpretation that best serves the interests of human rights protection in cases where the most serious breaches of human rights are alleged.

[1] The Kurdistan Workers’ Party, an illegal organisation.

[2] Approximately 14,000 euros (EUR).

[3] Approximately EUR 25,000.

[4] Approximately EUR 19,500.

[5] Approximately EUR 250.