Article 3 of the European Convention on Human Rights: A Practitioner’s Handbook
investigation or to acquit those responsible for the ill-treatment must be appealed
against if and when the national legislation provides for such a course of action.
It must be reiterated in this connection that according to the Court’s established
case law, a mere doubt as to the prospect of success of a particular remedy is not
sufficient to exempt an applicant from the requirement of exhausting that remedy.
If the applicant has not exhausted a particular remedy, he or she must explain in
the application form the reasons for his or her decision not to do so. Such explanations may include, for example, the fact that the particular remedy has already been
examined by the Court in another case that concerned similar facts and the Court
has concluded that the remedy is indeed ineffective. If the remedy in question has
not yet been examined by the Court, on the other hand, and if it is the applicant’s
belief that the particular remedy is not capable of providing redress, he or she
should consider providing examples of domestic court decisions demonstrating
the ineffectiveness of that remedy. This may be done by showing that the remedy
in question has been tried in the past under similar circumstances and provided
no relief.
In case of any doubts about the effectiveness of a particular domestic remedy, the
applicant should consider exhausting the remedy in question while at the same
time introducing his or her application with the Court. Finally, it should be noted
that the rule of exhaustion interacts in important ways with the six(four)-month
rule. Therefore, applicants are advised to read this section on exhaustion together
with the following section describing the six-month rule.
2.2.5 The Timeliness of the Application (Article 35 §1)
a) The Six (Four)-Month Period in General
According to Article 35 §1 “[t]he Court may only deal with the matter […] within a period of six months from the date on which the final decision was taken.”
Persuant to Article 4 of Protocol No. 15, not yet in force, the words “within a period
of six months” shall be replaced by the words “within a period of four months;”
this effectively reduces future applicants to four months within which they have
to petition the Court.
The purpose of the six (four)-month time-limit under Article 35 § 1 is to promote
legal certainty, by ensuring that cases are dealt with in a reasonable time and that
past decisions are not continually open to challenge.473 With regard to Article 3 the
Court further explained that
474 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, 18 September 2009, § 156, and Walker v. the United Kingdom (dec.),
no. 34979/97, 25 January 2000.
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