Human Rights Chamber

According to Article VIII.2(a) of Annex 6, the time limit to file an application to the Human Rights Chamber is 6 months. Moreover, the time limit for filing an application starts running from the date on which the (final) decision was served on the applicant. The time limit cannot be understood as a waiting time limit, i.e., the applicant is not obliged to wait for six months before submitting an application.²⁹⁶⁸

If, during the proceedings, the applicant requests that the competent authority deliver the decision to him/her in person, not to his/her legal representative, the time limit shall start running from the date on which the decision was served on him/her regardless of the date on which the legal representative received the decision.²⁹⁶⁹ According to Rule 46, paragraph 5 of the Rules of Procedure of the Human Rights Chamber, the date of introduction of the application shall in general be considered to be the “date of the first communication from the applicant setting out, even summarily, the subject matter of the application”, which means the first communication, which in essence means the application.²⁹⁷⁰ The time limit for filing an application cannot be considered to be a formality. It serves to ensure a certain degree of legal certainty and to make it possible for the cases which give rise to issues under the ECHR to be considered within a reasonable time.²⁹⁷¹

In case of special requirements, the expiry of the time limit does not have to necessarily be an obstacle to the adoption of a decision on the merits. Yet, the applicant must in general state the reasons for exceeding the given time limit.²⁹⁷² So, for instance, if the applicant was not aware of the entry into force of Annex 6 of the GFAP, or of the existence of the Human Rights Chamber, since the signatory parties of Annex 6 failed to make available the Human Rights Agreement²⁹⁷³ to the general public according to Article XV, or if the applicant did not inform his/her attorney of the deprivation of liberty, these can be accepted as reasons for failure to comply with the six-month requirement.²⁹⁷⁴ Also, a hospitalisation may be accepted as a justified reason for failure to comply with the six-month time limit.²⁹⁷⁵ The applicant bears the burden of submitting evidence proving that there have been justified reasons for failure to comply with the time limit.²⁹⁷⁶

The wording of Article VIII.2(a) of Annex 6 allows the Human Rights Chamber to, in addition to the aforesaid, interpret “generously” the six-month time limit in certain cases, as the European Court of Human Rights interprets Article 35 of the ECHR.²⁹⁷⁷ Insofar as the applications of the importance of this principle are concerned, the Human Rights Chamber gave up counting the time limit ex officio. When the respondent party failed to point to the failure to comply with the time limit, the Human Rights Chamber would declare the applications admissible without considering the timely nature of the application regardless of facts pointing to the failure to comply with the time limit

So in the Rizvanović case, the judgment of the Supreme Court, dated 3 June 1996, had to be treated as final within the meaning of Article VIII.2(a) of Annex 6, since subsequent legal remedies pursued by the applicant were extraordinary and, thus, did not prevent the 6-month time limit from running. The application was filed on 9 August 1997, more than one year after the judgment of the Supreme Court (compare with CH/97/59-A&M, paragraphs 2, 16 et seq). Even if the application had been regarded as being late for several months, the time limit would have probably been exceeded. The Human Rights Chamber did not consider admissibility as to the time limit. It was only during the proceedings initiated upon a request for review of the decision on the merits that the respondent party raised an objection relating to the failure to comply with the time limit, which was declared as outside the time limit by the Chamber.²⁹⁷⁸

Likewise, in other cases,²⁹⁷⁹ the Human Rights Chamber did not take the real final decision in the proceedings as the relevant decision from which to count the time limit but rather another decision which could not be treated as such if the notion of “final decision” was interpreted in a strict manner, since the pursued legal remedy was not admissible. A decisive fact for such treatment in Case No. CH/01/6979 was the manifest and serious violation of rights by the ordinary courts; the Human Rights Chamber did not want to avoid examining the courts’ findings because of a failure to meet the formal requirements. The same applied to the cases in which the applicants concluded that there was no effective legal means for solving a particular problem, but they reached such a conclusion only after they had tried to pursue certain legal remedies. What was important in such cases was the fact that the applicant had filed an application within the time limit of six months as of the moment when they became aware of the fact that the national legal system did not provide an effective legal remedy for the resolution of their legal problem.²⁹⁸⁰

If a so-called final decision is lacking, the time limit of six months starts running on the date when a continuing violation²⁹⁸¹ ended; or if a violation is considered permanent, the time limit starts running only on the date when the violation ended.²⁹⁸² If the applicant finds certain violations of his/her rights in a timely fashion, i.e., within the six-month time limit but he/she alleges a violation of other rights in an untimely fashion, since the six-month time limit has expired, the request is considered to be partially timely, i.e., only the allegations submitted in a timely fashion may be accepted; the remaining part of the application is considered inadmissible.²⁹⁸³ Indeed, if the applicant submits a supplement to his/her initial claim within a time limit of six months, such allegations are not considered inadmissible.²⁹⁸⁴

The time limit starts running, as already indicated, on the date when the final decision is taken in a case, whereas the applicant holds that the final decision is in violation of his/her rights, i.e., the final decision did not provide a protection of his rights. Therefore, there is a risk of the applicant failing to comply with the time limit of he pursues a legal remedy which the Human Rights Chamber considers as ineffective. It is to be noted that in that case, the six-month time limit starts running (not on the date when the last decision was delivered in terms of chronology) as of the date when a previous decision was served on him/her, the one considered as final by the Human Rights Chamber. Therefore, if the applicant has any doubts about the effectiveness of a legal remedy, and in order to avoid a possible unsuccessful result of its pursuance, the applicant may simultaneously file both an application with the Human Rights Chamber and pursue the legal remedy whose usefulness is not certain in respect of whether the Human Rights Chamber would considered it as “effective” or not. In the event that the uncertain legal remedy is considered effective, the applicant may withdraw his/her claim. In that case, the time limit for filing an application with the Human Rights Chamber starts running on the date when the applicant receives a decision on that legal remedy.²⁹⁸⁵